North Carolina register

This publication is printed on permanent, acid-free paper in compliance with G.S. 125-11.13
NORTH CAROLINA
REGISTER
VOLUME 22 ● ISSUE 17 ● Pages 1491 - 1583
March 3, 2008
I. EXECUTIVE ORDERS
Executive Order No. 135 .................................................................................... 1491
II. IN ADDITION
Decision Letters on "Changes Affecting Voting" from US Attorney General 1492
Brownfields Property – Tremont Partners, LP................................................ 1493
Notice of Application for Approval of Wastewater System - DENR ............. 1494
Notice of Change of Location for Public Hearing .......................................... 1495
III. PROPOSED RULES
Agriculture and Consumer Services, Department of
Pesticide Board ............................................................................................... 1496 – 1497
Occupational Licensing Boards and Commissions
Massage and Bodywork Therapy, Board of.................................................... 1497 – 1499
Speech and Language Pathologists and Audiologists, .................................... 1499
Board of Examiners for
IV. APPROVED RULES........................................................................................ 1500 – 1563
Environment and Natural Resources, Department of
Coastal Resources Commission
Department
Marine Fisheries Commission
Health and Human Services, Department of
Health Service Regulation, Division of
Public Health, Commission for
Social Services Commission
Insurance, Department
Department
Justice, Department of
Campus and Company Police Program
Private Protective Services Board
Occupational Licensing Boards and Commissions
Dental Examiners, Board of
Medical Board
Pharmacy, Board of
Revenue, Department of
Department
State Personnel, Office of
State Personnel Commission
Transportation, Department
Department
V. RULES REVIEW COMMISSION ................................................................. 1564 – 1578
VI. CONTESTED CASE DECISIONS
Index to ALJ Decisions ...................................................................................... 1579 – 1583
This publication is printed on permanent, acid-free paper in compliance with G.S. 125-11.13
Contact List for Rulemaking Questions or Concerns
For questions or concerns regarding the Administrative Procedure Act or any of its components, consult
with the agencies below. The bolded headings are typical issues which the given agency can address,
but are not inclusive.
Rule Notices, Filings, Register, Deadlines, Copies of Proposed Rules, etc.
Office of Administrative Hearings
Rules Division
Capehart-Crocker House (919) 733-2678
424 North Blount Street (919) 733-3462 FAX
Raleigh, North Carolina 27601-2817
contact: Molly Masich, Codifier of Rules molly.masich@ncmail.net (919) 733-3367
Dana Vojtko, Publications Coordinator dana.vojtko@ncmail.net (919) 733-2679
Julie Edwards, Editorial Assistant julie.edwards@ncmail.net (919) 733-2696
Felicia Williams, Editorial Assistant felicia.s.williams@ncmail.net (919) 733-3361
Rule Review and Legal Issues
Rules Review Commission
1307 Glenwood Ave., Suite 159 (919) 733-2721
Raleigh, North Carolina 27605 (919) 733-9415 FAX
contact: Joe DeLuca Jr., Commission Counsel joe.deluca@ncmail.net (919) 715-8655
Bobby Bryan, Commission Counsel bobby.bryan@ncmail.net (919) 733-0928
Angela Person, Administrative Assistant angela.person@ncmail.net (919) 733-2721
Fiscal Notes & Economic Analysis
Office of State Budget and Management
116 West Jones Street (919) 807-4700
Raleigh, North Carolina 27603-8005 (919) 733-0640 FAX
contact: William Crumbley, Economic Analyst william.crumbley@ncmail.net (919) 807-4740
Governor’s Review
Reuben Young reuben.young@ncmail.net
Legal Counsel to the Governor (919) 733-5811
116 West Jones Street(919)
Raleigh, North Carolina 27603
Legislative Process Concerning Rule-making
Joint Legislative Administrative Procedure Oversight Committee
545 Legislative Office Building
300 North Salisbury Street (919) 733-2578
Raleigh, North Carolina 27611 (919) 715-5460 FAX
contact: Karen Cochrane-Brown, Staff Attorney karenc@ncleg.net
Jeff Hudson, Staff Attorney jeffreyh@ncleg.net
County and Municipality Government Questions or Notification
NC Association of County Commissioners
215 North Dawson Street (919) 715-2893
Raleigh, North Carolina 27603
contact: Jim Blackburn jim.blackburn@ncacc.org
Rebecca Troutman rebecca.troutman@ncacc.org
NC League of Municipalities (919) 715-4000
215 North Dawson Street
Raleigh, North Carolina 27603
contact: Anita Watkins awatkins@nclm.org
This publication is printed on permanent, acid-free paper in compliance with G.S. 125-11.13
NORTH CAROLINA REGISTER
Publication Schedule for January 2008 – December 2008
FILING DEADLINES NOTICE OF TEXT PERMANENT RULE TEMPORARY
RULES
Volume &
issue
number
Issue date Last day
for filing
Earliest date for
public hearing
End of required
comment
period
Deadline to submit
to RRC
for review at
next meeting
Earliest Eff.
Date of
Permanent Rule
Delayed Eff. Date of
Permanent Rule
31st legislative day of the
session beginning:
270th day from publication
in the Register
22:13 01/02/08 12/06/07 01/17/08 03/03/08 03/20/08 05/01/08 05/13/08 09/28/08
22:14 01/15/08 12/19/07 01/30/08 03/17/08 03/20/08 05/01/08 05/13/08 10/11/08
22:15 02/01/08 01/10/08 02/16/08 04/01/08 04/21/08 06/01/08 01/2009 10/28/08
22:16 02/15/08 01/25/08 03/01/08 04/15/08 04/21/08 06/01/08 01/2009 11/11/08
22:17 03/03/08 02/11/08 03/18/08 05/02/08 05/20/08 07/01/08 01/2009 11/28/08
22:18 03/17/08 02/25/08 04/01/08 05/16/08 05/20/08 07/01/08 01/2009 12/12/08
22:19 04/01/08 03/10/08 04/16/08 06/02/08 06/20/08 08/01/08 01/2009 12/27/08
22:20 04/15/08 03/25/08 04/30/08 06/16/08 06/20/08 08/01/08 01/2009 01/10/09
22:21 05/01/08 04/10/08 05/16/08 06/30/08 07/21/08 09/01/08 01/2009 01/26/09
22:22 05/15/08 04/24/08 05/30/08 07/14/08 07/21/08 09/01/08 01/2009 02/09/09
22:23 06/02/08 05/09/08 06/17/08 08/01/08 08/20/08 10/01/08 01/2009 02/27/09
22:24 06/16/08 05/23/08 07/01/08 08/15/08 08/20/08 10/01/08 01/2009 03/13/09
23:01 07/01/08 06/10/08 07/16/08 09/02/08 09/22/08 11/01/08 01/2009 03/28/09
23:02 07/15/08 06/23/08 07/30/08 09/15/08 09/22/08 11/01/08 01/2009 04/11/09
23:03 08/01/08 07/11/08 08/16/08 09/30/08 10/20/08 12/01/08 01/2009 04/28/09
23:04 08/15/08 07/25/08 08/30/08 10/14/08 10/20/08 12/01/08 01/2009 05/12/09
23:05 09/02/08 08/11/08 09/17/08 11/03/08 11/20/08 01/01/09 01/2009 05/30/09
23:06 09/15/08 08/22/08 09/30/08 11/14/08 11/20/08 01/01/09 01/2009 06/12/09
23:07 10/01/08 09/10/08 10/16/08 12/01/08 12/22/08 02/01/09 05/2010 06/28/09
23:08 10/15/08 09/24/08 10/30/08 12/15/08 12/22/08 02/01/09 05/2010 07/12/09
23:09 11/03/08 10/13/08 11/18/08 01/02/09 01/20/09 03/01/09 05/2010 07/31/09
23:10 11/17/08 10/24/08 12/02/08 01/16/09 01/20/09 03/01/09 05/2010 08/14/09
23:11 12/01/08 11/05/08 12/16/08 01/30/09 02/20/09 04/01/09 05/2010 08/28/09
23:12 12/15/08 11/20/08 12/30/08 02/13/09 02/20/09 04/01/09 05/2010 09/11/09
This publication is printed on permanent, acid-free paper in compliance with G.S. 125-11.13
EXPLANATION OF THE PUBLICATION SCHEDULE
This Publication Schedule is prepared by the Office of Administrative Hearings as a public service and the computation of time periods are not to be deemed binding or controlling.
Time is computed according to 26 NCAC 2C .0302 and the Rules of Civil Procedure, Rule 6.
GENERAL
The North Carolina Register shall be published twice
a month and contains the following information
submitted for publication by a state agency:
(1) temporary rules;
(2) notices of rule-making proceedings;
(3) text of proposed rules;
(4) text of permanent rules approved by the Rules
Review Commission;
(5) notices of receipt of a petition for municipal
incorporation, as required by G.S. 120-165;
(6) Executive Orders of the Governor;
(7) final decision letters from the U.S. Attorney
General concerning changes in laws affecting
voting in a jurisdiction subject of Section 5 of
the Voting Rights Act of 1965, as required by
G.S. 120-30.9H;
(8) orders of the Tax Review Board issued under
G.S. 105-241.2; and
(9) other information the Codifier of Rules
determines to be helpful to the public.
COMPUTING TIME: In computing time in the
schedule, the day of publication of the North Carolina
Register is not included. The last day of the period so
computed is included, unless it is a Saturday, Sunday,
or State holiday, in which event the period runs until
the preceding day which is not a Saturday, Sunday, or
State holiday.
FILING DEADLINES
ISSUE DATE: The Register is published on the first
and fifteen of each month if the first or fifteenth of
the month is not a Saturday, Sunday, or State holiday
for employees mandated by the State Personnel
Commission. If the first or fifteenth of any month is
a Saturday, Sunday, or a holiday for State employees,
the North Carolina Register issue for that day will be
published on the day of that month after the first or
fifteenth that is not a Saturday, Sunday, or holiday for
State employees.
LAST DAY FOR FILING: The last day for filing for any
issue is 15 days before the issue date excluding
Saturdays, Sundays, and holidays for State
employees.
NOTICE OF TEXT
EARLIEST DATE FOR PUBLIC HEARING: The hearing
date shall be at least 15 days after the date a notice of
the hearing is published.
END OF REQUIRED COMMENT PERIOD
An agency shall accept comments on the text of a
proposed rule for at least 60 days after the text is
published or until the date of any public hearings held
on the proposed rule, whichever is longer.
DEADLINE TO SUBMIT TO THE RULES REVIEW
COMMISSION: The Commission shall review a rule
submitted to it on or before the twentieth of a month
by the last day of the next month.
FIRST LEGISLATIVE DAY OF THE NEXT REGULAR
SESSION OF THE GENERAL ASSEMBLY: This date is
the first legislative day of the next regular session of
the General Assembly following approval of the rule
by the Rules Review Commission. See G.S. 150B-
21.3, Effective date of rules.
EXECUTIVE ORDERS
22:17 NORTH CAROLINA REGISTER MARCH 3, 2008
1491
IN ADDITION
22:17 NORTH CAROLINA REGISTER MARCH 3, 2008
1492
Note from the Codifier: This Section contains public notices that are required to be published in the Register or have been approved
by the Codifier of Rules for publication.
IN ADDITION
22:17 NORTH CAROLINA REGISTER MARCH 3, 2008
1493
SUMMARY OF NOTICE OF
INTENT TO REDEVELOP A BROWNFIELDS PROPERTY
Tremont Partners, LP
Pursuant to N.C.G.S. 130A-310.34, Tremont Partners, LP has filed with the North Carolina Department of Environment and
Natural Resources ("DENR") a Notice of Intent to Redevelop a Brownfields Property ("Property") in Charlotte, Mecklenburg County,
North Carolina. The Property, where Ferguson Enterprises, Inc. currently operates a warehouse and showroom, consists of
approximately 2.88 acres and is located at 101 West Tremont Avenue. Environmental contamination exists on the Property in
groundwater. Tremont Partners, LP has committed itself to effect redevelopment of the Property that will consist of a multi-story
building containing luxury residential units with amenities, as well as retail, office and other commercial uses, and a parking structure.
The Notice of Intent to Redevelop a Brownfields Property includes: (1) a proposed Brownfields Agreement between DENR and
Tremont Partners, LP, which in turn includes (a) a map showing the location of the Property, (b) a description of the contaminants
involved and their concentrations in the media of the Property, (c) the above-stated description of the intended future use of the
Property, and (d) proposed investigation and remediation; and (2) a proposed Notice of Brownfields Property prepared in accordance
with G.S. 130A-310.35.
The full Notice of Intent to Redevelop a Brownfields Property may be reviewed at the Public Library of Charlotte &
Mecklenburg County, 310 N. Tryon St., Charlotte, NC 28202 by contacting Allison Aiken at that address or at (704) 336-2725; or at
NC Brownfields Program, 401 Oberlin Rd., Suite 150, Raleigh, NC 27605 by contacting Shirley Liggins at that address, at
shirley.liggins@ncmail.net, or at (919) 508-8411, where DENR will provide auxiliary aids and services for persons with disabilities
who wish to review the documents.
Written public comments may be submitted to DENR within 30 days after the date this Notice is published in a newspaper of
general circulation serving the area in which the Property is located, or in the North Carolina Register, whichever is later. Written
requests for a public meeting may be submitted to DENR within 21 days after the period for written public comments begins. Thus, if
Tremont Partners, LP, as it plans, publishes this Summary in the North Carolina Register after it publishes the Summary in a
newspaper of general circulation serving the area in which the Property is located, and if it effects publication of this Summary in the
North Carolina Register on the date it expects to do so, the periods for submitting written requests for a public meeting regarding this
project and for submitting written public comments will commence on March 4, 2008. All such comments and requests should be
addressed as follows:
Mr. Bruce Nicholson
Brownfields Program Manager
Division of Waste Management
NC Department of Environment and Natural Resources
401 Oberlin Road, Suite 150
Raleigh, North Carolina 27605
IN ADDITION
22:17 NORTH CAROLINA REGISTER MARCH 3, 2008
1494
Notice of Application for Innovative Approval of a Wastewater System for On-site Subsurface Use
Pursuant to NCGS 130A-343(g), the North Carolina Department of Environment and Natural Resources (DENR) shall publish a
Notice in the NC Register that a manufacturer has submitted a request for approval of a wastewater system, component, or device for
on-site subsurface use. The following applications have been submitted to DENR:
Application by: Dick Bachelder
PSA Inc/ADS Inc
PO Box 3000
Hilliard, OH 43026
For: Revised Innovative Approval for "BioDiffuser" chambered subsurface wastewater system
DENR Contact: Ted Lyon
1-919-715-3274
Fax: 919-715-3227
ted.lyon@ncmail.net
These applications may be reviewed by contacting the applicant or at 2728 Capital Blvd., Raleigh, NC, On-Site Water Protection
Section, Division of Environmental Health. Draft proposed innovative approvals and proposed final action on the application by
DENR can be viewed on the On-Site Water Protection Section web site: http://www.deh.enr.state.nc.us/osww_new/new1//index.htm.
Written public comments may be submitted to DENR within 30 days of the date of the Notice publication in the North Carolina
Register. All written comments should be submitted to Mr. Ted Lyon, Chief, On-site Water Protection Section, 1642 Mail Service
Center, Raleigh, NC 27699-1642, or ted.lyon@ncmail.net, or fax 919.715.3227. Written comments received by DENR in accordance
with this Notice will be taken into consideration before a final agency decision is made on the innovative subsurface wastewater
system application.
IN ADDITION
22:17 NORTH CAROLINA REGISTER MARCH 3, 2008
1495
NOTICE OF CHANGE OF LOCATION FOR PUBLIC HEARING
The Gasoline and Oil Inspection Board published a Notice of Text of proposed rules pertaining to motor fuel standards, 02 NCAC 42,
in the 22:14 North Carolina Register. The location of the public hearing has been changed to the Governor James G. Martin Building,
North Carolina State Fairgrounds, 1025 Blue Ridge Blvd., Raleigh, NC. The time and date of the public hearing will still be at 10:00
on March 18, 2008.
PROPOSED RULES
22:17 NORTH CAROLINA REGISTER MARCH 3, 2008
1496
Note from the Codifier: The notices published in this Section of the NC Register include the text of proposed rules. The agency
must accept comments on the proposed rule(s) for at least 60 days from the publication date, or until the public hearing, or a
later date if specified in the notice by the agency. If the agency adopts a rule that differs substantially from a prior published
notice, the agency must publish the text of the proposed different rule and accept comment on the proposed different rule for 60
days.
Statutory reference: G.S. 150B-21.2.
TITLE 02 – DEPARTMENT OF AGRICULTURE AND
CONSUMER SERVICES
Notice is hereby given in accordance with G.S. 150B-21.2 that
the North Carolina Pesticide Board intends to adopt the rules
cited as 02 NCAC 09L .2201 - .2203.
Proposed Effective Date: July 1, 2008
Instructions on How to Demand a Public Hearing: (must be
requested in writing within 15 days of notice): Any person may
request a public hearing on the proposed rules by submitting a
request in writing no later than March 18, 2008, to James W.
Burnette, Jr., Secretary, NC Pesticide Board, 1090 Mail Service
Center, Raleigh, NC 27699-1090.
Reason for Proposed Action: The North Carolina Pesticide
Board is proposing these rules to protect the North Carolina
Heelsplitter Mussel, a federally endangered species occurring in
Union County, NC. The rules identify pesticides needing
additional use limitations to provide additional protections and
establish setback areas near streams where these pesticides
cannot be used.
Procedure by which a person can object to the agency on a
proposed rule: Any person may object to the proposed rules by
submitting a written statement of objection(s) to James W.
Burnette, Jr., Secretary, NC Pesticide Board, 1090 Mail Service
Center, Raleigh, NC 27699-1090.
Comments may be submitted to: James W. Burnette, Jr., 1090
Mail Service Center, Raleigh, NC 27699-1090, phone (919)
733-3556, fax (919) 733-9796, email james.burnette@ncmail.net
Comment period ends: May 2, 2008
Procedure for Subjecting a Proposed Rule to Legislative
Review: If an objection is not resolved prior to the adoption of
the rule, a person may also submit written objections to the
Rules Review Commission. If the Rules Review Commission
receives written and signed objections in accordance with G.S.
150B-21.3(b2) from 10 or more persons clearly requesting
review by the legislature and the Rules Review Commission
approves the rule, the rule will become effective as provided in
G.S. 150B-21.3(b1). The Commission will receive written
objections until 5:00 p.m. on the day following the day the
Commission approves the rule. The Commission will receive
those objections by mail, delivery service, hand delivery, or
facsimile transmission. If you have any further questions
concerning the submission of objections to the Commission,
please call a Commission staff attorney at 919-733-2721.
Fiscal Impact:
State
Local
Substantive (>$3,000,000)
None
CHAPTER 09 - FOOD AND DRUG PROTECTION
DIVISION
SUBCHAPTER 09L - PESTICIDE SECTION
SECTION .2200 - INTERIM PROTECTION MEASURES
FOR THE CAROLINA HEELSPLITTER MUSSEL
02 NCAC 09L .2201 DEFINITIONS
All specific words or terms used in this Section other than those
defined in this Rule shall have the same definitions as shown in
the North Carolina Pesticide Law of 1971, G.S. 143-460.
"Pesticide use limitation areas" means areas where the use of a
specific pesticide is further regulated in order to protect and
promote the recovery of federally listed endangered or
threatened animal or plant species that are in danger of
becoming extinct.
Authority G.S. 143-458; 143-466(a).
02 NCAC 09L .2202 PESTICIDE USE LIMITATION
AREAS
The table in 02 NCAC 09L .2203 contains pesticide active
ingredients that have specific limitations on pesticide use in
order to protect the federally listed endangered species Carolina
heelsplitter (Lasmigona decorata) in Union County, NC, in the
vicinity of:
(1) the main stem of Goose Creek from the NC
Highway 218 bridge, downstream to its
confluence with the Rocky River;
(2) the main stem of Duck Creek, from the
Mecklenburg/Union County line, downstream
to its confluence with Goose Creek; and
(3) the main stem of Waxhaw Creek, from NC
Highway 200 bridge, downstream to the North
Carolina/South Carolina State line.
Authority G.S. 143-458; 143-466(a).
PROPOSED RULES
22:17 NORTH CAROLINA REGISTER MARCH 3, 2008
1497
02 NCAC 09L .2203 PESTICIDES WITH
ADDITIONAL USE LIMITATIONS
The application of any of the following pesticides in the vicinity
of the areas identified in 02 NCAC 09L .2202 must not occur
within the pesticide use limitation areas identified by the codes
in the following table:
Pesticide Active Ingredient Code
Azinphos-methyl 2x
Benomyl 1x
Captan 1x
Carbaryl 2x
Carbofuran 1x
Chlorpyrifos 3z
Diazinon 2x
Dicofol 2x
Dimethoate 2x
Endosulfan 2x
Esfenvalerate 1x
Ethion 2x
Ethoprop 1x
Fenamiphos 2x
Fonofos 2x
Malathion 2x
Methidathion 2x
Methomyl 1x
Mevinphos 2x
Naled 1x
Parathion (ethyl) 2x
Pendimethalin 2x
Permethrin 1x
Phorate 1x
Phosmet 1x
Phosphamidon 1x
Propiconazole 1x
Pyrethrins 2x
Terbufos 2x
Trichlorfon 2x
Code/Limitations:
(1) 1x - Within the area described in 02 NCAC
09L .2202 and one-half mile up all streams
that join the area, do not apply this pesticide
within 20 yards from the edge of water for
ground applications and within 100 yards for
aerial applications;
(2) 2x - Within the area described in 02 NCAC
09L .2202 and one-half mile up all streams
that join the area, do not apply this pesticide
within 40 yards from the edge of water for
ground applications and within 200 yards for
aerial applications;
(3) 3z - Within the area described in 02 NCAC
09L .2202, do not apply this pesticide within
100 yards from the edge of water for ground
applications and within one-fourth mile for
aerial applications.
Authority G.S. 143-458; 143-466(a).
TITLE 21 – OCCUPATIONAL LICENSING BOARDS AND
COMMISSIONS
CHAPTER 30 - NC BOARD OF MASSAGE AND
BODYWORK THERAPY
Notice is hereby given in accordance with G.S. 150B-21.2 that
the North Carolina Board of Massage and Bodywork Therapy
intends to adopt the rule cited as 21 NCAC 30 .0516 and amend
the rules cited as 21 NCAC 30 .0102, .0201.
Proposed Effective Date: August 1, 2008
Public Hearing:
Date: April 17, 2008
Time: 11:00 a.m.
Location: Wachovia Capitol Center, 13th Floor Conference
Room, 150 Fayetteville Street, Raleigh, NC 27601
Reason for Proposed Action: These amendments to existing
rules and the additional new rule are being submitted to clarify
the Massage and Bodywork Therapy Practice Act.
Procedure by which a person can object to the agency on a
proposed rule: Any person may object to any of these proposed
amendments or adoptions by submitting a written statement to
Charles P. Wilkins at PO Box 2539, Raleigh, NC 27602,
postmarked on or before June 3, 2008.
Comments may be submitted to: Charles P. Wilkins, PO Box
2539, Raleigh, NC 27602, phone (919) 833-2752, fax (919)
833-1059, email cwilkins@bws-law.com
Comment period ends: June 3, 2008
Procedure for Subjecting a Proposed Rule to Legislative
Review: If an objection is not resolved prior to the adoption of
the rule, a person may also submit written objections to the
Rules Review Commission. If the Rules Review Commission
receives written and signed objections in accordance with G.S.
150B-21.3(b2) from 10 or more persons clearly requesting
review by the legislature and the Rules Review Commission
approves the rule, the rule will become effective as provided in
G.S. 150B-21.3(b1). The Commission will receive written
objections until 5:00 p.m. on the day following the day the
Commission approves the rule. The Commission will receive
those objections by mail, delivery service, hand delivery, or
facsimile transmission. If you have any further questions
concerning the submission of objections to the Commission,
please call a Commission staff attorney at 919-733-2721.
Fiscal Impact:
State
Local
Substantive (>$3,000,000)
None
PROPOSED RULES
22:17 NORTH CAROLINA REGISTER MARCH 3, 2008
1498
SECTION .0100 - ORGANIZATION AND GENERAL
PROVISIONS
21 NCAC 30 .0102 DEFINITIONS
In addition to the definitions set forth in G.S. 90-622(1) through
(5), the following definitions apply:
(1) Classroom hours of supervised instruction. --
Student learning activities in a training
program that is conducted in the physical
presence of an instructor who meets the
qualifications of Rule .0612 of this Chapter.
(2) Generally recognized psychometric principles
and standards. -- Standards for Educational
and Psychological Testing (1999, American
Psychological Association, American
Educational Research Association, National
Council on Measurement in Education),
Principles of Fairness: An Examining Guide
for Credentialing Boards (Revised 2002,
Council on Licensure, Enforcement, and
Regulation, National Organization for
Competency Assurance) which is hereby
incorporated by reference, including
subsequent amendments and editions. Copies
of the standards may be obtained from The
American Psychological Association at 750
First Street, NE, Washington, DC 20002-4242
or online at
http://www.apa.org/science/standards.html.
(1)(8) Practice Act. -- Article 36, Chapter 90 of the
North Carolina General Statutes: The North
Carolina Massage and Bodywork Therapy
Practice Act.
(2)(5) Licensee. -- A person who holds a valid
license issued by the Board to engage in the
practice of massage and bodywork therapy.
(3)(9) Reciprocity. -- Pursuant to G.S. 90-630, a
provision which shall apply to practitioners of
massage and bodywork therapy qualified
pursuant to Rule .0304 who reside outside the
State.
(4)(7) Place of business. -- The primary street
location where the licensee provides massage
and bodywork therapy. If the licensee provides
massage and bodywork therapy only at the
location of clients, then it shall be the
residence street address of the licensee.
(5)(6) Malpractice. -- Conduct in variance with the
Standards of Practice set forth in Section .0500
that results in harm to a client or that
endangers the health or safety of a client.
(6)(3) Gross negligence. -- The intentional failure to
perform a manifest duty in reckless disregard
of the consequences as affecting the life or
property of another.
(7)(4) Incompetency. -- Conduct that evidences a
lack of ability, fitness or knowledge to apply
principles or skills of the profession of
massage and bodywork therapy.
(8)(10) Therapeutic, educational, or relaxation
purposes. -- Pursuant to G.S. 90-622(3), that
which is intended to positively affect the
health and well-being of the client, and that
does not include sexual activity, as defined in
Rule .0508.
Authority G.S. 90-622; 90-626(9).
SECTION .0200 - APPLICATION FOR LICENSE
21 NCAC 30 .0201 APPLICATION AND SCOPE
Each applicant for a license as a massage and bodywork
therapist shall complete an application form provided by the
Board. This form shall be submitted to the Board and shall be
accompanied by:
(1) Recent original photograph(s)One original
color photograph of the applicant taken within
six months preceding the date of the
application of acceptablesufficient quality for
identification. SuchThe photograph shall be of
the head and shoulders, passport type, two
inches by two inches in size;
(2) The proper fees, as required by Rule .0204 of
this Section;
(3) Documentation that the applicant has earned a
high school diploma or equivalent;
(4) Documentation that the applicant is 18 years
of age or older;
(5) Documentation that the applicant has
successfully completed a course of study at a
Board-approved school consisting of a
minimum of 500 classroom hours of
supervised instruction. If the applicant
attended a school which is not
Board-approved, the Board may elect to
review that applicant's educational credentials
for approval on a case-by-case basis. At a
minimum, theThe documentation of such
training must come from a school which is
licensed by the educational licensing authority
in the state, territory or country in which it
operates, or is exempt by statute. In North
Carolina the documentation must come from a
proprietary school approved by the Board or a
community college program. The curriculum
must meet or be substantially equivalent to the
standards set forth in Rule .0602(a)(3)
.0620(2) of this Chapter;
(6) Documentation that the applicant has
successfully passedachieved a passing score
on an examination administered by a certifying
agency that has been approved by the National
Commission of Certifying Agencies
(NCCA)Agencies, and documentation that the
applicant is a certificant and is in good
standing with such agencyagency; or has
achieved a passing score on a competency
assessment examination administered by the
PROPOSED RULES
22:17 NORTH CAROLINA REGISTER MARCH 3, 2008
1499
Board or approved by the Board as meeting
generally recognized psychometric principles
and standards; and
(7) A form provided by the Board containing
signed statements from two licensed massage
and bodywork therapists, or other licensed
health care practitioners, attesting to the
applicant's good moral character and
adherence to ethical standards.
Authority G.S. 90-626(2); 90-629.
SECTION .0500 - STANDARDS OF PROFESSIONAL
CONDUCT
21 NCAC 30 .0516 TREATMENT IN BODY
CAVITIES
A licensed massage and bodywork therapist (LMBT) may
perform massage and bodywork therapy inside the vaginal or
anal cavities of a client provided the LMBT complies with the
following requirements prior to the massage or bodywork
therapy:
(1) the LMBT obtains written and signed consent
from the client for treatment inside the client's
vaginal or anal cavities stating that the client
has been advised that the client has the right to
have another person, provided either by the
client or therapist, present in the room while
the treatment is being performed and
indicating whether the client chooses treatment
with a third person present or treatment with
only the therapist and the client present;
(2) the massage and bodywork therapy treatment
is performed in conformance with Rule .0509
of this Chapter;
(3) the LMBT is competent to perform massage
and bodywork therapy inside the vaginal or
anal cavities of the client; and
(4) a written prescription or order has been
received from a licensed medical doctor
prescribing or ordering the specific massage
and bodywork therapy treatment.
Authority G.S. 90-626(9).
* * * * * * * * * * * * * * * * * * * *
CHAPTER 64 - BOARD OF EXAMINERS OF SPEECH
AND LANGUAGE PATHOLOGISTS AND
AUDIOLOGISTS
Notice is hereby given in accordance with G.S. 150B-21.2 that
the NC Board of Examiners for Speech and Language
Pathologists and Audiologists intends to adopt the rule cited as
21 NCAC 64 .0218.
Proposed Effective Date: August 1, 2008
Public Hearing:
Date: April 18, 2008
Time: 10 a.m.
Location: 3100 Tower Blvd., Suite 522m, Durham, NC
Reason for Proposed Action: To provide rule for continuing
education pursuant to statutory amendment effective October 1,
2007.
Procedure by which a person can object to the agency on a
proposed rule: Appear at the hearing on April 18, 2008.
Comments may be submitted to: John C. Randall, 3100
Tower Blvd., Durham, NC 27707
Comment period ends: April 18, 2008
Procedure for Subjecting a Proposed Rule to Legislative
Review: If an objection is not resolved prior to the adoption of
the rule, a person may also submit written objections to the
Rules Review Commission. If the Rules Review Commission
receives written and signed objections in accordance with G.S.
150B-21.3(b2) from 10 or more persons clearly requesting
review by the legislature and the Rules Review Commission
approves the rule, the rule will become effective as provided in
G.S. 150B-21.3(b1). The Commission will receive written
objections until 5:00 p.m. on the day following the day the
Commission approves the rule. The Commission will receive
those objections by mail, delivery service, hand delivery, or
facsimile transmission. If you have any further questions
concerning the submission of objections to the Commission,
please call a Commission staff attorney at 919-733-2721.
Fiscal Impact:
State
Local
Substantive (>$3,000,000)
None
SECTION .0200 - INTERPRETATIVE RULES
21 NCAC 64 .0218 CONTINUIING EDUCATION
The Board requires that beginning January 1, 2009 each licensee
must complete annually 10 hours of continuing professional
education as approved by the Board.
Authority G.S. 90-304(a)(3).
APPROVED RULES
22:17 NORTH CAROLINA REGISTER MARCH 3, 2008
1500
This Section includes a listing of rules approved by the Rules Review Commission followed by the full text of those rules. The
rules that have been approved by the RRC in a form different from that originally noticed in the Register or when no notice was
required to be published in the Register are identified by an * in the listing of approved rules. Statutory Reference: G.S. 150B-
21.17.
Rules approved by the Rules Review Commission at its meeting on January 17, 2008
REGISTER CITATION TO THE
NOTICE OF TEXT
SOCIAL SERVICES COMMISSION
Planning Program Activities 10A NCAC 06R .0501* 22:08 NCR
Nutrition 10A NCAC 06R .0502* 22:08 NCR
Transportation 10A NCAC 06R .0503 22:08 NCR
Records 10A NCAC 06R .0508* 22:08 NCR
HEALTH SERVICE REGULATION, DIVISION OF
Definitions 10A NCAC 14C .2301* 22:08 NCR
Information Required of Applicant 10A NCAC 14C .2302* 22:08 NCR
Performance Standards 10A NCAC 14C .2303* 22:08 NCR
Support Services 10A NCAC 14C .2304 22:08 NCR
Staffing and Staff Training 10A NCAC 14C .2305* 22:08 NCR
PUBLIC HEALTH, COMMISSION FOR
Authorized WIC Vendors 10A NCAC 43D .0706* n/a G.S. 150B-21.5(a)(3)
INSURANCE, DEPARTMENT OF
Definitions 11 NCAC 06A .0101 22:08 NCR
N.C. Non-Resident Broker's Insurance Bond 11 NCAC 06A .0211 22:08 NCR
North Carolina Notice of Cancellation 11 NCAC 06A .0217 22:08 NCR
Responsibility of Applicant at Examination Site 11 NCAC 06A .0304* 22:08 NCR
Licensing of Resident Agent, LTD, Representative
and Adju...
11 NCAC 06A .0402* 22:08 NCR
Licensing and Broker 11 NCAC 06A .0404* 22:08 NCR
Licensing of Nonresident Broker 11 NCAC 06A .0405 22:08 NCR
Licensing of Motor Vehicle Damage Appraiser 11 NCAC 06A .0408 22:08 NCR
Adjuster's Learner's Permit 11 NCAC 06A .0414 22:08 NCR
Personal Interviews 11 NCAC 06A .0604 22:08 NCR
General Requirements 11 NCAC 06A .0701* 22:08 NCR
Prelicensing Education Schools 11 NCAC 06A .0702* 22:08 NCR
Program Directors 11 NCAC 06A .0703* 22:08 NCR
Courses 11 NCAC 06A .0704* 22:08 NCR
Instructors 11 NCAC 06A .0705* 22:08 NCR
Definitions 11 NCAC 06A .0801* 22:08 NCR
Licensee Requirements 11 NCAC 06A .0802* 22:08 NCR
Carryover Credit 11 NCAC 06A .0804 22:08 NCR
APPROVED RULES
22:17 NORTH CAROLINA REGISTER MARCH 3, 2008
1501
Calculation of ICECS 11 NCAC 06A .0805* 22:08 NCR
Hardship 11 NCAC 06A .0807* 22:08 NCR
Instructor Qualification 11 NCAC 06A .0808* 22:08 NCR
Approval of Courses 11 NCAC 06A .0809* 22:08 NCR
Sanctions for Noncompliance 11 NCAC 06A .0811* 22:08 NCR
Issuance/Continuation of Provider Approval 11 NCAC 06A .0813* 22:08 NCR
Exemptions 11 NCAC 12 .0604* 22:08 NCR
JUSTICE, DEPARTMENT OF
Application for Company Police Agency 12 NCAC 02I .0203* 22:01 NCR
Transfers 12 NCAC 02I .0305* 22:01 NCR
Badges, Uniforms, Vehicles and Officer
Identification
12 NCAC 02I .0306* 22:01 NCR
Agency Retention of Records of Commission 12 NCAC 02I .0501* 22:01 NCR
PRIVATE PROTECTIVE SERVICES BOARD
Training Video and Training Test 12 NCAC 07D .1109 22:02 NCR
ENVIRONMENT AND NATURAL RESOURCES, DEPARTMENT OF
Purpose 15A NCAC 01N .0101* 22:03 NCR
Definitions 15A NCAC 01N .0102* 22:03 NCR
Applicable Procedures 15A NCAC 01N .0103* 22:03 NCR
Availability of Loans 15A NCAC 01N .0201* 22:03 NCR
Loan Restrictions 15A NCAC 01N .0202* 22:03 NCR
Determination of Eligibility 15A NCAC 01N .0301* 22:03 NCR
Eligible Project Costs 15A NCAC 01N .0303 22:03 NCR
Filing Deadlines 15A NCAC 01N .0401* 22:03 NCR
Application Procedures 15A NCAC 01N .0402* 22:03 NCR
Project Schedule and Resolution 15A NCAC 01N .0403 22:03 NCR
Assignment of Priorities 15A NCAC 01N .0502* 22:03 NCR
General Criteria 15A NCAC 01N .0601 22:03 NCR
Public Health and Compliance 15A NCAC 01N .0602 22:03 NCR
Consolidation 15A NCAC 01N .0603 22:03 NCR
Reliability 15A NCAC 01N .0604 22:03 NCR
Affordability 15A NCAC 01N .0605 22:03 NCR
Source Protection and Management 15A NCAC 01N .0606 22:03 NCR
Determination of Awards and Bypass Procedures 15A NCAC 01N .0701* 22:03 NCR
Disbursement of Loans 15A NCAC 01N .0704* 22:03 NCR
Interest Rates 15A NCAC 01N .0801 22:03 NCR
Audit 15A NCAC 01N .0902* 22:03 NCR
MARINE FISHERIES COMMISSION
Prohibited Rakes 15A NCAC 03K .0102* 22:05 NCR
Shellfish or Seed Management 15A NCAC 03K .0103* 22:05 NCR
Prohibited Taking 15A NCAC 03K .0304 22:05 NCR
APPROVED RULES
22:17 NORTH CAROLINA REGISTER MARCH 3, 2008
1502
Bay Scallops - Seasons and Harvest Limits 15A NCAC 03K .0501 22:05 NCR
Soaked or Swelled Bay Scallops Prohibited 15A NCAC 03K .0506 22:05 NCR
Application Process 15A NCAC 03O .0402* 22:05 NCR
Eligibility Board Review 15A NCAC 03O .0403* 22:05 NCR
Eligibility Criteria 15A NCAC 03O .0404* 22:05 NCR
COASTAL RESOURCES COMMISSION
Civil Penalties 15A NCAC 07J .0409* 22:05 NCR
REVENUE, DEPARTMENT OF
Pre-Hearing Conference 17 NCAC 01C .0201* n/a G.S. 150B-1(d)(4)
Procedure of Hearing 17 NCAC 01C .0202* n/a G.S. 150B-1(d)(4)
Assistance of Counsel 17 NCAC 01C .0203* n/a G.S. 150B-1(d)(4)
Failure to Appear 17 NCAC 01C .0205* n/a G.S. 150B-1(d)(4)
Application for Hearing 17 NCAC 01C .0305* n/a G.S. 150B-1(d)(4)
Waiver of Time Limitation 17 NCAC 01C .0307* n/a G.S. 150B-1(d)(4)
Claim for Tax Refund 17 NCAC 01C .0316* n/a G.S. 150B-1(d)(4)
Tax Refund 17 NCAC 01C .0317* n/a G.S. 150B-1(d)(4)
Computation and Payment of Amusement Gross
Receipts Taxes
17 NCAC 04B .0302* n/a G.S. 150B-1(d)(4)
Overpayments Applied to Next Year 17 NCAC 05C .1904* n/a G.S. 150B-1(d)(4)
Purpose 17 NCAC 05D .0107* n/a G.S. 150B-1(d)(4)
Who May Submit Request 17 NCAC 05D .0108* n/a G.S. 150B-1(d)(4)
Request for Alternative Apportionment Formula 17 NCAC 05D .0109* n/a G.S. 150B-1(d)(4)
Time for Filing 17 NCAC 05D .0110* n/a G.S. 150B-1(d)(4)
Notice of Conference 17 NCAC 05D .0111* n/a G.S. 150B-1(d)(4)
Who Shall Attend the Conference 17 NCAC 05D .0112* n/a G.S. 150B-1(d)(4)
Conduct of the Conference 17 NCAC 05D .0113* n/a G.S. 150B-1(d)(4)
Final Decision 17 NCAC 05D .0115* n/a G.S. 150B-1(d)(4)
Additional Fire and Lightning Taxes 17 NCAC 05E .0102* n/a G.S. 150B-1(d)(4)
Group Premiums 17 NCAC 05E .0105* n/a G.S. 150B-1(d)(4)
TRANSPORTATION, DEPARTMENT OF
Prequalifying to Bid: Requalification 19A NCAC 02D .0801* 22:06 NCR
Invitation to Bid 19A NCAC 02D .0802 22:06 NCR
Advertisement and Invitations for Bids 19A NCAC 02D .0803* 22:06 NCR
Contents of Proposal Forms 19A NCAC 02D .0804 22:06 NCR
Combination Bids 19A NCAC 02D .0805 22:06 NCR
Interpretation of Quantities in Proposal Form 19A NCAC 02D .0806 22:06 NCR
Examination of Plans: Specs: Contract: and Site of
Work
19A NCAC 02D .0807* 22:06 NCR
Preparation and Submission of Bids 19A NCAC 02D .0808 22:06 NCR
Bid Bond or Bid Deposit 19A NCAC 02D .0809 22:06 NCR
Delivery of Bids 19A NCAC 02D .0810* 22:06 NCR
Withdrawal or Revision of Bids 19A NCAC 02D .0811 22:06 NCR
Receipt and Opening of Bids 19A NCAC 02D .0812 22:06 NCR
APPROVED RULES
22:17 NORTH CAROLINA REGISTER MARCH 3, 2008
1503
Withdraw of Bids – Mistake 19A NCAC 02D .0813 22:06 NCR
Correction of Bids Errors 19A NCAC 02D .0814 22:06 NCR
Rejection of Bids 19A NCAC 02D .0815 22:06 NCR
Disqualification of Bidders 19A NCAC 02D .0816 22:06 NCR
Consideration of Bids 19A NCAC 02D .0817 22:06 NCR
Non-Collusion Affidavit and Certifications 19A NCAC 02D .0818 22:06 NCR
Award of Contract 19A NCAC 02D .0819 22:06 NCR
Return of Bid Bond or Bid Request 19A NCAC 02D .0821 22:06 NCR
Contract Bonds 19A NCAC 02D .0822 22:06 NCR
Execution of Contract 19A NCAC 02D .0823 22:06 NCR
Failure to Furnish Contract Bonds 19A NCAC 02D .0824 22:06 NCR
Confidentiality of Cost Estimates 19A NCAC 02D .0825 22:06 NCR
Subsurface Information 19A NCAC 02D .0827 22:06 NCR
Computer Bid Preparation 19A NCAC 02D .0828 22:06 NCR
Definitions 19A NCAC 02D .0830 22:06 NCR
Purpose and Scope 19A NCAC 02D .1101 22:06 NCR
Definitions 19A NCAC 02D .1102* 22:06 NCR
Certification of Firms 19A NCAC 02D .1103* 22:06 NCR
Renewal of Certification 19A NCAC 02D .1104 22:06 NCR
Change in Ownership or Control 19A NCAC 02D .1105 22:06 NCR
Decertification 19A NCAC 02D .1106* 22:06 NCR
Appeals of Denial of Certification 19A NCAC 02D .1107* 22:06 NCR
Goals 19A NCAC 02D .1108* 22:06 NCR
Counting Participation Toward Meeting the Goal 19A NCAC 02D .1109 22:06 NCR
Non-Attainment of Goals 19A NCAC 02D .1110 22:06 NCR
Performance Related Replacement of Eligible Firms 19A NCAC 02D .1111 22:06 NCR
Replacement of a Firm Removed by Decertification 19A NCAC 02D .1112 22:06 NCR
DENTAL EXAMINERS, BOARD OF
Location 21 NCAC 16A .0104 22:08 NCR
Time for Filing 21 NCAC 16B .0402 22:08 NCR
Temporary Volunteer Dental Permit 21 NCAC 16B .0801* 22:08 NCR
Time for Filing 21 NCAC 16C .0402 22:08 NCR
Applications 21 NCAC 16I .0101* 22:08 NCR
Penalty/Non-Compliance/Continuing Education
Requirement
21 NCAC 16I .0105* 22:08 NCR
Fee for Late Filing and Duplicate Licenses 21 NCAC 16I .0106 22:08 NCR
License Void Upon Failure to Renew 21 NCAC 16I .0107 22:08 NCR
Sterilization 21 NCAC 16J .0103* 22:08 NCR
General Anesthesia Credentials and Permit 21 NCAC 16Q .0201 22:08 NCR
Applications 21 NCAC 16R .0101* 22:08 NCR
Fee for Late Filing 21 NCAC 16R .0102 22:08 NCR
Penalty/Non-Compliance/Continuing Education 21 NCAC 16R .0107* 22:08 NCR
Eligibility to Practice Hygiene Outside Direct
Supervision
21 NCAC 16Z .0101* 22:08 NCR
Record Keeping 21 NCAC 16Z .0102* 22:08 NCR
Inspections 21 NCAC 16Z .0103* 22:08 NCR
APPROVED RULES
22:17 NORTH CAROLINA REGISTER MARCH 3, 2008
1504
MEDICAL BOARD
Ten-Year Qualification 21 NCAC 32B .1207* 22:06 NCR
Administration of Vaccines by Pharmacists 21 NCAC 32U .0101* 22:08 NCR
PHARMACY, BOARD OF
Administration of Vaccines by Pharmacists 21 NCAC 46 .2507* 22:08 NCR
STATE PERSONNEL COMMISSION
Content and Procedure 25 NCAC 01B .0201* n/a G.S. 150B-21.5
Presentations 25 NCAC 01B .0204* n/a G.S. 150B-21.5
Requests for Declaratory Ruling 25 NCAC 01B .0213* n/a G.S. 150B-21.5
Continuances 25 NCAC 01B .0439* n/a G.S. 150B-21.5
Policy 25 NCAC 01N .0501 22:06 NCR
Administration 25 NCAC 01N .0502 22:06 NCR
Wellness Leader 25 NCAC 01N .0503 22:06 NCR
Wellness Committees 25 NCAC 01N .0504 22:06 NCR
TITLE 10A – DEPARTMENT OF HEALTH AND HUMAN
SERVICES
10A NCAC 06R .0501 PLANNING PROGRAM
ACTIVITIES
(a) Enrollment Policies and Procedures
(1) Each adult program shall have enrollment
policies. Enrollment policies shall be in
writing as a part of the program policies and
shall define the population served. These
policies serve as the basis for determining who
shall be accepted into the program and for
planning activities appropriate for the
participants. The policies shall be specific to
prevent enrolling people whose needs cannot
be met by the planned activities and shall
provide for discharge of participants whose
needs can no longer be met or who can no
longer be cared for safely. If a day care
program serves semi-ambulatory or
non-ambulatory persons, it shall be so stated in
the admissions criteria.
(2) Prior to enrollment, the applicant, family
members or other caregiver shall have a
minimum of one personal interview with a
minimum of one program staff member.
During the interview, the staff shall complete
initial documentation identifying social and
medical care needs, any designated spiritual,
religious or cultural needs, and a determination
of whether the program can meet the
individual's expressed needs. The staff person
doing the interviewing shall sign the
determination of needs and the applicant,
family member or other caregiver shall sign
the application for enrollment. These signed
documents shall be obtained before the
individual's first day of attendance as a
participant in the program.
(3) A medical examination report signed by a
physician, nurse practitioner or physician's
assistant, completed within the prior three
months, shall be obtained by the program
within 30 days of enrollment. This report
must be updated annually no later than the
anniversary date of the initial report.
(4) At enrollment, or in the initial interview, the
program policies shall be discussed with the
applicant, family member or other caregiver
and a copy of the program policies shall be
provided.
(5) Documentation of receipt of and agreement to
abide by the program policies by the applicant,
family member or other caregiver shall be
obtained by the program and kept in the
participant's file.
(6) The program policies shall contain:
(A) a discharge policy outlining the
criteria for discharge and notification
procedures for discharge, the
timeframe and procedures for
notifying the applicant, family
member or other caregiver of
discharge, and referral or follow-up
procedures;
(B) a medication policy as specified in
Rule .0505 of this Section;
(C) a description of participant's rights;
APPROVED RULES
22:17 NORTH CAROLINA REGISTER MARCH 3, 2008
1505
(D) grievance policies and procedures for
families;
(E) advance directives policy;
(F) non-discrimination policies;
(G) procedure to maintain confidentiality;
(H) policy on reporting suspected abuse
or neglect;
(I) description of the geographical area
served by the program; and
(J) inclement weather policies.
(b) Planning Services for Individual Participants
(1) Within 30 days of enrollment of a new
participant, the program shall perform a
comprehensive assessment and written service
plan for each individual. The assessment shall
address the individual's ability to perform
activities of daily living and instrumental
activities of daily living while in the program.
The mental, social, living environment,
economic and physical health status of the
individual shall also be assessed. The service
plan shall be signed and dated by the program
director or the director's designee. For adult
day health participants the health component
of the service plan shall be written and signed
by a registered nurse.
(2) In developing the written service plan, the
program shall include input from the
participant, family members, or other
caregiver and other agency professionals with
knowledge of the individual's needs. The
service plan shall be based on strengths, needs
and abilities identified in the assessment. The
assessment and service plan shall be reviewed
at regular intervals, and no less than once
every six months. The service plan shall
include:
(A) the needs and strengths of the
participant;
(B) the interests of the participant;
(C) the measurable service goals and
objectives of care for the participant
while in the day care program;
(D) the type of interventions to be
provided by the program in order to
reach desired outcomes;
(E) the services to be provided by the
program to achieve the goals and
objectives;
(F) the roles of participant, family,
caregiver, volunteers and program
staff; and
(G) the time limit for the plan, with
provision for review and renewal.
(3) Progress notes in the participant's record shall
be updated at least every three months.
(4) The participant, caregiver, and other service
providers may contribute to the development,
implementation and evaluation of the service
plan.
(5) Any unusual behavior, change in mood,
change in attitude or need for help or services
shall be reported by the program. If the
participant is a social services client, the report
shall be made to the participant's family,
caregiver, or responsible party and the
department of social services worker or the
social worker designated as consultant to the
day care program by the department. If the
participant is not a social services client, the
report shall be made to the person's family,
caregiver or responsible party. A note shall be
made in the participant's record of action
taken.
(6) The participant or the responsible party may
choose the days and number of days the
participant will attend, with the program
director's approval.
(7) The reason for any unscheduled participant
absence shall be determined by the program
staff and documented on the day it occurs.
The program shall attempt to contact the
absent participant or the responsible party.
(8) The adult day care program is responsible for
the participant when a participant is registered
in attendance. A participant leaving the
program for part of a day shall sign out
relieving the staff of further responsibility. If
a participant has emotional or mental
impairment which requires supervision and
that person needs or wants to leave the
program during the day, the social worker,
family, caregiver, friend, or responsible party
shall sign the person out.
(c) Program Activities Plan
(1) The day care center or home shall have a
program activities plan which meets the
following criteria:
(A) Overall planning of activities are
based on elements of the individual
service plans.
(B) The primary program mode is the
group process, both large and small
groups, with provision for individual
activities and services as needed.
(C) Activities are adaptable and
modifiable to allow for greater
participation and to maintain
participant's individual skill level.
(D) Activities are consistent with the
stated program goals.
(E) Activities are planned jointly by staff
and participants. Staff shall
encourage participants to participate
in the planning and operation of the
program as much as they are able,
and to use their skills, talent and
APPROVED RULES
22:17 NORTH CAROLINA REGISTER MARCH 3, 2008
1506
knowledge in program planning and
operation.
(F) All program activities are supervised
by program staff.
(G) Participants may refuse to participate
in any given activity.
(2) The activities schedule shall provide for the
inclusion of cognitive activities to be available
on a daily basis, and be designed to:
(A) stimulate thinking and creativity;
(B) provide opportunities for learning
new ideas and skills;
(C) help maintain existing reasoning
skills and knowledge base; and
(D) provide opportunities to utilize
previously learned skills.
(3) The activities schedule shall provide for the
inclusion of physical activities to be available
on a daily basis, and be designed to:
(A) improve or maintain mobility and
overall strength; and
(B) increase or maintain joint range of
motion.
(4) The activities schedule shall provide for the
inclusion of psychosocial activities to be
available on a daily basis, and be designed to:
(A) provide opportunities for social
interaction;
(B) develop a sense of belonging;
(C) promote goal-oriented use of time;
(D) create feelings of accomplishment;
(E) foster dignity and self-esteem;
(F) prompt self-expression; and
(G) provide fun and enjoyment.
(5) The activities schedule shall:
(A) be in writing, specifying the name of
each activity to be provided, the days
of the week each activity shall be
conducted, and the approximate
length of time of each activity;
(B) indicate the length of time the
schedule is to be followed; and
(C) be posted weekly or monthly in a
prominent place in the facility.
History Note: Authority G.S. 131D-6; 143B-153;
Eff. July 1, 1978;
Amended Eff. February 1, 2008; July 1, 2007; July 1, 1990;
January 1, 1981.
10A NCAC 06R .0502 NUTRITION
(a) An adult day program shall provide a midday meal to each
participant in attendance. The meal shall provide at least
one-third of an adult's daily nutritional requirement as specified
by the United States Department of Agriculture, Dietary
Guidelines for Americans, which are incorporated by reference,
including any subsequent amendments or additions to these
guidelines. These guidelines may be viewed and downloaded
from the Internet at http://www.health.gov/dietaryguidelines/. A
licensed dietician/nutritionist shall approve the menu.
(b) An adult day program shall offer snacks and fluids to meet
the participant's nutritional and fluid needs. The adult day
program shall offer a mid-morning and mid-afternoon snack
daily to participants. Snacks shall be planned to keep sugar, salt
and cholesterol intake to a minimum.
(c) An adult day program shall provide a therapeutic diet, if
prescribed in writing by a physician, physician's assistant or
nurse practitioner for any participant. If therapeutic diets are
prepared by program staff, such staff shall have training in
planning and preparing therapeutic diets or shall provide
documentation of previous training and education sufficient to
assure ability to prepare meals in accordance with a physician's
prescription.
(d) A licensed dietician/nutritionist shall give consultation to the
staff on basic and special nutritional needs and proper food
handling techniques and the prevention of foodborne illness.
(e) An adult day care program shall neither admit nor continue
to serve a participant whose dietary requirements cannot be
accommodated by the program.
(f) An adult day program shall store, prepare and serve meals in
a sanitary manner using safe food handling techniques such as
those recommended by the United States Department of
Agriculture, at the following website:
(http://www.fsis.usda.gov/Fact_Sheets/Safe_Food_Handling_Fa
ct_Sheets/index.asp). The food service provider shall abide by
the food safety and sanitation practices required by the
Commission for Public Health rules applying to adult day care
facilities, including any subsequent amendments or additions,
which are incorporated by reference. Copies of the rules may be
found at the following website:
(http://www.deh.enr.state.nc.us/ehs/images/rules/t15a-
18a.33.pdf).
History Note: Authority G.S. 131D-6; 143B-153;
Eff. July 1, 1978;
Amended Eff. February 1, 2008; July 1, 2007; March 1, 1992;
October 1, 1981; January 1, 1981.
10A NCAC 06R .0503 TRANSPORTATION
(a) For programs providing or arranging for public
transportation, the adult day care program shall have a
transportation policy that includes routine and emergency
procedures. Accidents, medical emergencies, weather
emergencies and escort issues shall be addressed.
(b) When the adult day care program provides transportation,
the following requirements shall be met to ensure the health and
safety of the participants:
(1) Each person transported shall have a seat in
the vehicle.
(2) Participants shall be transported no more than
30 minutes without being offered the
opportunity to have a rest stop.
(3) Vehicles used to transport participants shall be
equipped with seatbelts. Participants shall be
instructed to use seatbelts while being
transported.
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(4) Vehicles shall be equipped with a first aid kit,
consisting of the items listed in 10A NCAC
06S .0301(a), and a fire extinguisher.
(5) A copy of the transportation policy shall be
located in the vehicle used for transport.
History Note: Authority G.S. 131D-6; 143B-153;
Eff. July 1, 1978;
Amended Eff. January 1, 1981;
Temporary Amendment Eff. October 1, 2001;
Amended Eff. February 1, 2008; July 1, 2007; August 1, 2002.
10A NCAC 06R .0508 RECORDS
(a) Individual Participant Records. Each adult day care program
shall maintain records to document the progress of each
participant and to document program operation. These records
shall be kept in a locked file. An individual folder for each
participant shall be established and maintained and include the
following:
(1) a signed application recording:
(A) participant's full name;
(B) address and telephone number;
(C) date of birth, marital status and living
arrangement of participant;
(D) time of day participant will arrive and
time of day participant will leave the
program;
(E) travel arrangements to and from the
program for the participant;
(F) name, address and telephone number
of at least two family members or
friends who are responsible for the
participant and can be contacted in
emergencies;
(G) name, address and telephone number
of a licensed medical service provider
who will see the participant on
request; and
(H) personal concerns and knowledge of
the caregiver that may have an impact
on the participant's care plan.
(2) copies of all current and former signed
authorizations for the day care program to
receive and give out confidential information
on the participant. The current authorization
shall include the name of the party from whom
information is requested and to whom
information is given. The current
authorization shall be dated within the prior 12
months and obtained each time a request for
participant information is made.
(3) a signed authorization for the participant to
receive emergency medical care from any
licensed medical practitioner, if emergency
care is needed by the participant;
(4) a medical examination report conducted within
three months before enrollment and updated
annually, signed by a licensed physician,
physician's assistant or nurse practitioner. The
report shall include information on:
(A) current diseases and chronic
conditions and the degree to which
these diseases and conditions require
observation by day care staff, and
restriction of normal activities by the
participant;
(B) presence and degree of psychiatric
problems;
(C) amount of direct supervision the
participant requires;
(D) any limitations on physical activities;
(E) listing of all medications with
dosages and times medications are to
be administered; and
(F) most recent date participant was seen
by doctor.
(5) assessment forms as identified in Rule
.0501(a)(2) and (b)(1) and (b)(2) of this
Section.
(6) progress notes which are the written report of
staff discussions, conferences, consultation
with family or other interested parties,
evaluation of a participant's progress and any
other information regarding a participant's
situation.
(7) service plans for the participant, including
scheduled days of attendance, for the
preceding 12 months.
(8) a signed authorization if the participant or his
responsible party will permit photographs,
video, audio recordings or slides of the
participant to be made by the day care
program, whether for medical documentation,
publicity, or any other purpose. The
authorization shall specify how and where
such photographs, videos, audio recordings or
slides will be used, and shall be obtained prior
to taking any photographs, videos, audio
recordings or slides of the participant.
(9) a statement signed by the participant, a family
member or other responsible party (when
applicable) acknowledging receipt of the
program policies and agreeing to uphold
program policies pertaining to the participant.
(b) The adult day program shall keep the following program
records a minimum of six years:
(1) copies of activity schedules;
(2) monthly records of expenses and income,
including fees collected, and fees to be
collected;
(3) all bills, receipts and other information which
document expenses and income;
(4) a daily record of attendance of participants by
name;
(5) accident reports;
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(6) a record of staff absences, annual leave and
sick leave, including dates and names of
substitutes;
(7) reports on emergency and fire drills;
(8) individual personnel records on all staff
members including:
(A) application for employment;
(B) evidence of a state criminal history
check on each employee providing
direct care;
(C) job description;
(D) medical certification of absence of a
health condition that would pose a
risk to others;
(E) written note or report on any
personnel action taken with the
employee;
(F) written report of annual employee
review;
(G) CPR and first aid training
documentation; and
(H) signed statement to keep all
participant information confidential.
(9) a copy of all written policies, including:
(A) program policies;
(B) personnel policies;
(C) agreements or contracts with other
agencies or individuals;
(D) plan for emergencies; and
(E) evacuation plan;
(10) program evaluation reports; and
(11) control file of DSS-5027 (SIS Client Entry
Form) for all participants for whom Social
Services Block Grant (Title XX)
reimbursement is claimed.
History Note: Authority G.S. 131D-6; 143B-153;
Eff. July 1, 1978;
Amended Eff. February 1, 2008; July 1, 2007; March 1, 1992;
July 1, 1990; January 1, 1981.
* * * * * * * * * * * * * * * * * * * *
10A NCAC 14C .2301 DEFINITIONS
The following definitions shall apply to all rules in this Section:
(1) "Approved computed tomography (CT)
scanner" means a CT scanner which was not
operational prior to the beginning of the
review period but which had been issued a
certificate of need.
(2) "Computed tomography" means a technique
whereby a sharply collimated X-ray beam is
passed through the human body from a source
which rotates around the body in a specific
arc. As the beam passes through the body
from its perimeter, its intensity is reduced.
The transmitted intensity of the beam varies in
accordance with the density of the tissue it
passes through and is measured by sensitive
detectors and, from this information,
two-dimensional cross-sectional pictures or
other images may be generated. A computer is
used to generate the image from the
measurements of X-ray beam intensity. Tissue
images can be done with or without contrast
agents. Computed tomography services are
rendered by CT scanners.
(3) "Computed tomography (CT) scanner" means
an imaging machine which combines the
information generated by a scanning X-ray
source and detector system with a computer to
reconstruct a cross-sectional image of the full
body, including the head.
(4) "Computed tomography (CT) service area"
means a geographical area defined by the
applicant from which the applicant projects to
serve patients.
(5) "CT scan" means one discrete image of a
patient produced by a CT scanner.
(6) "Existing CT scanner" means a computed
tomography scanner in operation prior to the
beginning of the review period.
(7) "Fixed CT scanner" means a CT scanner that
is used at only one location or campus.
(8) "HECT unit" means a unit that is equivalent to
one CT scan which is derived by applying a
weighted conversion factor to a CT scan in
accordance with the Head Equivalent
Computed Tomography studies formula
developed by the National Electric
Manufacturers, based on the "Leonard
Methodology".
(9) "Mobile CT scanner" means a CT scanner and
transporting equipment which is moved to
provide services at two or more host facilities.
(10) "Related entity" means the parent company of
the applicant, a subsidiary company of the
applicant (i.e., the applicant owns 50 percent
or more of another company), a joint venture
in which the applicant is a member, or a
company that shares common ownership with
the applicant (i.e., the applicant and another
company are owned by some of the same
persons).
History Note: Authority G.S. 131E-177(1); 131E-183(b);
Temporary Adoption Eff. September 1, 1993 for a period of 180
days or until the permanent rule becomes effective, whichever is
sooner;
Eff. February 1, 1994;
Amended Eff. February 1, 2008.
10A NCAC 14C .2302 INFORMATION REQUIRED OF
APPLICANT
(a) An applicant proposing to acquire a CT scanner shall use the
acute care facility/medical equipment application form.
(b) An applicant proposing to acquire a CT scanner shall
provide the number of CT scans that have been performed on
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each existing CT scanner which the applicant or a related entity
owns a controlling interest in and is located in the proposed CT
service area for each type of CT scan listed in this Paragraph for
the previous 12 month period:
(1) head scan without contrast;
(2) head scan with contrast;
(3) head scan without and with contrast;
(4) body scan without contrast;
(5) body scan with contrast;
(6) body scan without contrast and with contrast;
(7) biopsy in addition to body scan with or
without contrast; and
(8) abscess drainage in addition to body scan with
or without contrast.
(c) The applicant shall project the number of CT scans to be
performed on the proposed CT scanner for each type of CT scan
listed in this Paragraph for each of the first three years the new
CT scanner is proposed to be operated:
(1) head scan without contrast;
(2) head scan with contrast;
(3) head scan without and with contrast;
(4) body scan without contrast;
(5) body scan with contrast;
(6) body scan without contrast and with contrast;
(7) biopsy in addition to body scan with or
without contrast; and
(8) abscess drainage in addition to body scan with
or without contrast.
(d) The applicant shall convert the historical and projected
number of CT scans to HECT units as follows:
Type of CT Scan
No. of
Scans
Conversion
Factor HECT Units
1 Head without contrast X 1.00 =
2 Head with contrast X 1.25 =
3 Head without and with contrast X 1.75 =
4 Body without contrast X 1.50 =
5 Body with contrast X 1.75 =
6 Body without contrast and with contrast X 2.75 =
7 Biopsy in addition to body scan with or
without contrast
X 2.75 =
8 Abscess drainage in addition to body scan
with or without contrast
X 4.00 =
(e) An applicant proposing to acquire a mobile CT scanner shall
provide the information requested in Paragraphs (b), (c), and (d)
of this Rule for each proposed host facility.
(f) The applicant shall provide projected charges for each of the
20 most frequent CT scans to be performed for each of the first
three years the new CT scanner is proposed to be operated.
(g) If an applicant that has been utilizing a mobile CT scanner
proposes to acquire a fixed CT scanner for its facility, the
applicant shall demonstrate that its projected charge per CPT
code shall not increase more than 10 percent over its current
charge per CPT code on the mobile CT scanner.
(h) An applicant proposing to acquire a mobile CT scanner shall
provide copies of letters of intent from and proposed contracts
with all of the proposed host facilities of the new CT scanner.
(i) An applicant proposing to acquire a CT scanner shall
demonstrate that it has a written commitment from a radiologist,
licensed to practice medicine in North Carolina, to provide
professional interpretation services for the applicant.
(j) An applicant proposing to acquire a CT scanner shall
demonstrate that the CT scanner shall be available and staffed
for performing CT scan procedures at least 66 hours per week.
History Note: Authority G.S. 131E-177(1); 131E-183(b);
Temporary Adoption Eff. September 1, 1993 for a period of 180
days or until the permanent rule becomes effective, whichever is
sooner;
Eff. February 1, 1994;
Amended Eff. February 1, 2008.
10A NCAC 14C .2303 PERFORMANCE STANDARDS
An applicant proposing to acquire a CT scanner shall
demonstrate each of the following:
(1) each fixed or mobile CT scanner to be
acquired shall be projected to perform 5,100
HECT units annually in the third year of
operation of the proposed equipment;
(2) each existing fixed or mobile CT scanner
which the applicant or a related entity owns a
controlling interest in and is located in the
applicant's CT service area shall have
performed at least 5,100 HECT units in the 12
month period prior to submittal of the
application; and
(3) each existing and approved fixed or mobile CT
scanner which the applicant or a related entity
owns a controlling interest in and is located in
the applicant's CT service area shall be
projected to perform 5,100 HECT units
annually in the third year of operation of the
proposed equipment.
History Note: Authority G.S. 131E-177(1); 131E-183(b);
Temporary Adoption Eff. September 1, 1993 for a period of 180
days or until the permanent rule becomes effective, whichever is
sooner;
Eff. February 1, 1994;
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Amended Eff. February 1, 2008.
10A NCAC 14C .2304 SUPPORT SERVICES
(a) With the exception of applicants that currently provide CT
services, an applicant proposing to acquire a CT scanner shall
document the availability of the following diagnostic services:
(1) diagnostic radiology services;
(2) therapeutic radiology services;
(3) nuclear medicine services; and
(4) diagnostic ultrasound services.
(b) An applicant proposing to acquire a mobile CT scanner shall
provide:
(1) referral agreements between each host site and
at least one other provider of CT services in
the proposed CT service area to document the
availability of CT services if patients require
them when the mobile unit is not in service at
that host site; and
(2) documentation that each of the services listed
in Paragraphs (a) and (b) of this Rule shall be
available at each host facility or shall be
available through written affiliation or referral
agreements.
History Note: Authority G.S. 131E-177(1); 131E-183(b);
Temporary Adoption Eff. September 1, 1993 for a period of 180
days or until the permanent rule becomes effective, whichever is
sooner;
Eff. February 1, 1994;
Amended Eff. February 1, 2008.
10A NCAC 14C .2305 STAFFING AND STAFF
TRAINING
(a) With the exception of applicants that currently provide CT
services, an applicant proposing to acquire a CT scanner shall
demonstrate that it can meet the following staffing requirements:
(1) one radiologist who is certified by the
American Board of Radiologists and has had:
(A) training in computed tomography as
an integral part of his or her residency
training program; or
(B) six months of supervised CT
experience under the direction of a
diagnostic radiologist who is certified
by the American Board of
Radiologists; or
(C) at least six months of fellowship
training, or its equivalent, in CT; or
(D) a combination of CT experience and
fellowship training equivalent to Parts
(a)(1) (A), (B), or (C) of this Rule;
(2) at least one radiology technologist registered
by the American Registry of Radiologic
Technologists shall be present during the hours
of operation of the CT unit; and
(3) a radiation physicist with training in medical
physics shall be available for consultation for
the calibration and maintenance of the
equipment. The radiation physicist may be an
employee or an independent contractor.
(b) With the exception of applicants that currently provide CT
services, an applicant proposing to acquire a CT scanner shall
demonstrate that the following staff training is provided to
clinical personnel:
(1) certification in cardiopulmonary resuscitation
(CPR) and basic cardiac life support; and
(2) an organized program of staff education and
training which is integral to the services
program and ensures improvements in
technique and the proper training of new
personnel.
(c) An applicant proposing to acquire a mobile CT scanner shall
document that the requirements in Paragraphs (a) and (b) of this
Rule shall be met at each host facility.
History Note: Authority G.S. 131E-177(1); 131E-183(b);
Temporary Adoption Eff. September 1, 1993 for a period of 180
days or until the permanent rule becomes effective, whichever is
sooner;
Eff. February 1, 1994;
Amended Eff. February 1, 2008.
* * * * * * * * * * * * * * * * * * * *
10A NCAC 43D .0706 AUTHORIZED WIC VENDORS
(a) Vendor applicants and authorized vendors shall be placed
into peer groups as follows:
(1) When annual WIC supplemental food sales are
not yet available, vendor applicants and
authorized vendors, excluding chain stores,
stores under a WIC corporate agreement,
military commissaries, predominantly WIC
vendors, and free-standing pharmacies, shall
be placed into peer groups based on the
number of cash registers in the store until six
months WIC supplemental food sales become
available. The following are the peer groups
based on the number of cash registers in the
store:
Peer Group I - - zero to two cash
registers;
Peer Group II - - three to five cash
registers; and
Peer Group III - - six or more cash
registers.
WIC sales figures of new vendors shall be
reviewed six months from authorization. A
vendor whose first six months of WIC sales
exceed twenty five thousand dollars ($25,000)
shall be placed in the peer group designation in
accordance with the dollar thresholds of
Subparagraph (a)(2) of this Rule.
(2) Authorized vendors for which annual WIC
supplemental food sales is available, excluding
chain stores, stores under a WIC corporate
agreement, military commissaries,
predominantly WIC vendors, and free-
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standing pharmacies, shall be placed into peer
groups as follows, except as provided in
Subparagraph (a)(8) of this Rule.
Peer Group I - - two thousand dollars
($2,000) to twenty five thousand
dollars ($25,000) annually in WIC
supplemental food sales at the store;
Peer Group II - - greater than twenty
five thousand dollars ($25,000) but
not exceeding seventy five thousand
dollars ($75,000) annually in WIC
supplemental food sales at the store;
Peer Group III - - greater than seventy
five thousand dollars ($75,000) but
not exceeding three hundred thousand
dollars ($300,000) annually in WIC
supplemental food sales at the store;
and
Peer Group IV - - greater than three
hundred thousand dollars ($300,000)
annually in WIC supplemental food
sales at the store;
(3) Chain stores, stores under a WIC corporate
agreement (20 or more authorized vendors
under one agreement), military commissaries,
predominantly WIC vendors, and free-standing
pharmacies, including free-standing
pharmacy chain stores and free-standing
pharmacies participating under a WIC
corporate agreement, shall be placed into peer
groups as follows:
Peer Group IV - - chain stores, stores
under a WIC corporate agreement (20
or more authorized vendors under one
agreement), military commissaries,
and predominantly WIC vendors; and
Peer Group V - - free-standing
pharmacies, including free-standing
pharmacy chain stores and free-standing
pharmacies participating
under a WIC corporate agreement;
(4) Annual WIC supplemental food sales is the
dollar amount in sales of WIC supplemental
foods at the store within a 12-month period.
(5) If a vendor applicant has at least 30 percent
ownership in the applying store and at least 30
percent ownership in a store(s) already
authorized, the applying store shall be placed
in the peer group of the highest designation of
the already authorized stores(s). Upon
reauthorization of the WIC Vendor
Agreement, all stores held under common
ownership shall be placed in the highest peer
group among those held commonly. Common
ownership is ownership of 30 percent or more
in two or more stores.
(6) In determining a vendor's peer group
designation based on annual WIC
supplemental food sales under Subparagraph
(a)(2) of this Rule, the state agency shall look
at the most recent 12-month period for which
sales data is available. If the most recent
available 12-month period of WIC sales data
ends more than one year prior to the time of
designation, the peer group designation shall
be based on the number of cash registers in the
store in accordance with Subparagraph (a)(1)
of this Rule.
(7) The state agency may reassess an authorized
vendor's peer group designation at any time
during the vendor's agreement period and
place the vendor in a different peer group if
upon reassessment the state agency determines
that the vendor is no longer in the appropriate
peer group.
(8) A vendor applicant previously authorized in a
peer group under Subparagraph (a)(2) of this
Rule that is being reauthorized following the
nonrenewal or termination of its Agreement or
disqualification from the WIC Program shall
be placed into the same peer group the vendor
applicant was previously in under
Subparagraph (a)(2) of this Rule, provided that
no more than one year has passed since the
nonrenewal, termination or disqualification. If
more than one year has passed, the vendor
applicant shall be placed into a peer group in
accordance with Subparagraph (a)(1) of this
Rule.
(b) To become authorized as a WIC vendor, a vendor applicant
shall comply with the following vendor selection criteria:
(1) A vendor applicant shall accurately complete a
WIC Vendor Application, a WIC Price List,
and a WIC Vendor Agreement. A vendor
applicant shall submit its current highest shelf
price for each WIC supplemental food listed
on the WIC Price List.
(2) A vendor applicant, at the time of application
and throughout the term of authorization, shall
submit all completed forms to the local WIC
program, except that a corporate entity
operating under a WIC corporate agreement
shall submit one completed WIC corporate
agreement and the WIC Price Lists to the state
agency and a separate WIC Vendor
Application for each store to the local WIC
agency. A corporate entity operating under a
WIC corporate agreement may submit a single
WIC Price List for those stores that have the
same prices for WIC supplemental foods in
each store, rather than submitting a separate
WIC Price List for each store.
(3) A vendor applicant shall agree to purchase all
infant formula, exempt infant formula, and
WIC-eligible medical food directly from:
(A) Infant formula manufacturers
registered with the U.S. Food and
Drug Administration;
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(B) Food and drug wholesalers registered
with the North Carolina Secretary of
State and inspected or licensed by the
North Carolina Department of
Agriculture and Consumer Services;
(C) Retail food stores that purchase
directly from infant formula
manufacturers in accordance with
Part (b)(3)(A) of this Rule or an
approved wholesaler in accordance
with Part (b)(3)(B) of this Rule; or
(D) A supplier on another state's list of
approved infant formula suppliers as
verified by the state agency.
Authorized vendors shall agree to make
available to the state or local WIC agency,
upon request, invoices or receipts documenting
purchases of all infant formula, exempt infant
formula, and WIC-eligible medical food
directly from the above listed sources.
Acceptable receipts include company
letterhead or name of
wholesaler/manufacturer, date(s) of purchase
and itemization of purchases reflecting infant
formula, exempt infant formula, and WIC-eligible
medical food purchases.
(4) A vendor applicant's current highest shelf price
for each WIC supplemental food listed on the
WIC Price List must not exceed the maximum
price set by the state agency for each
supplemental food within that vendor
applicant's peer group, except as provided in
Part (b)(4)(B) of this Rule.
(A) The most recent WIC Price Lists
submitted by authorized vendors
within the same peer group shall be
used to determine the maximum price
for each supplemental food. The WIC
Price Lists of predominantly WIC
vendors shall be excluded from the
maximum price determination. The
maximum price shall be the 97th
percentile of the current highest shelf
prices for each supplemental food
within a vendor peer group. The state
agency shall reassess the maximum
price set for each supplemental food
at least four times a year. For two of
its price assessments, the state agency
shall use the WIC Price Lists which
must be submitted by all vendors by
April 1 and October 1 each year in
accordance with Subparagraph
(c)(30) of this Rule. The other two
price assessments shall be based on
WIC Price Lists requested from a
sample of vendors within each peer
group in January and July of each
year. The sample of vendors shall
exclude predominantly WIC vendors.
(B) If any of the vendor applicant's
price(s) on its WIC Price List exceed
the maximum price(s) set by the state
agency for that applicant's peer group,
the applicant shall be notified in
writing. Within 30 days of the date
of the written notice, the vendor
applicant may resubmit price(s) that it
will charge the state WIC Program
for those foods that exceeded the
maximum price(s). If none of the
vendor applicant's resubmitted prices
exceed the maximum prices set by the
state agency, the vendor applicant
shall be deemed to have met the
requirements of Subparagraph (b)(4)
of this Rule. If any of the vendor
applicant's resubmitted prices still
exceed the maximum prices set by the
state agency, or the vendor applicant
does not resubmit prices within 30
days of the date of written notice, the
application shall be denied in writing.
The vendor applicant must wait 90
days from the date of receipt of the
written denial to reapply for
authorization.
(5) A vendor applicant shall pass a monitoring
review by the local WIC program to determine
whether the store has minimum inventory of
supplemental foods as specified in
Subparagraph (c)(23) of this Rule. A vendor
applicant who fails this review shall be
allowed a second opportunity for an
unannounced monitoring review within 14
days. If the applicant fails both reviews, the
applicant shall wait 90 days from the date of
the second monitoring review before
submitting a new application.
(6) A vendor applicant shall attend, or cause a
manager or other authorized store
representative to attend, WIC Vendor Training
provided by the local WIC Program prior to
authorization and ensure that the applicant's
employees receive instruction in WIC program
procedures and requirements.
(7) An applicant shall mark the current shelf
prices of all WIC supplemental foods on the
foods or have the prices posted on the shelf or
display case at all times.
(8) The store shall be located at a permanent and
fixed location within the State of North
Carolina. The store shall be located at the
address indicated on the WIC vendor
application and shall be the site at which WIC
supplemental foods are selected by the WIC
customer.
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(9) The store shall be open throughout the year for
business with the public at least six days a
week for at least 40 hours per week between
8:00 a.m. and 11:00 p.m.
(10) The store shall not use either the acronym
"WIC" or the WIC logo, including close
facsimiles, in total or part, either in the official
name in which the business is registered or in
the name under which it does business, if
different.
(11) A vendor applicant shall not submit false,
erroneous, or misleading information in an
application to become an authorized WIC
vendor or in subsequent documents submitted
to the state or local WIC agency.
(12) The owner(s), officer(s) or manager(s) of a
vendor applicant shall not be employed, or
have a spouse, child, or parent who is
employed by the state WIC program or the
local WIC program serving the county in
which the vendor applicant conducts business.
A vendor applicant shall not have an employee
who handles, transacts, deposits, or stores
WIC food instruments who is employed, or
has a spouse, child, or parent who is employed
by the state WIC program or the local WIC
program serving the county in which the
vendor applicant conducts business.
(13) WIC vendor authorization shall be denied if in
the last six years any of the vendor applicant's
current owners, officers, or managers have
been convicted of or had a civil judgment
entered against them for any activity indicating
a lack of business integrity, including, fraud,
antitrust violations, embezzlement, theft,
forgery, bribery, falsification or destruction of
records, making false statements, receiving
stolen property, making false claims, and
obstruction of justice. For purposes of this
Subparagraph, "convicted" or "conviction"
means and includes a plea of guilty, a verdict
or finding of guilt by a jury, judge, magistrate,
or other duly constituted, established,
adjudicating body, tribunal, or official, either
civilian or military, or a plea of no contest,
nolo contendere, or the equivalent. Entry of a
prayer for judgment continued following a
conviction as defined in this Rule is the same
as a conviction for purposes of this
Subparagraph.
(14) A vendor applicant shall not be authorized if it
is currently disqualified from the Food Stamp
Program or it has been assessed a Food Stamp
Program civil money penalty for hardship and
the disqualification period that otherwise
would have been imposed has not expired.
(15) A vendor applicant, excluding chain stores and
stores under a WIC corporate agreement that
have a separate manager on site for each store,
shall not have an owner who holds a financial
interest in any of the following:
(A) a Food Stamp vendor which is
disqualified from participation in the
Food Stamp Program or has been
assessed a civil money penalty for
hardship in lieu of disqualification
and the time period during which the
disqualification would have run, had
a penalty not been paid, is continuing;
or
(B) another WIC vendor which is
disqualified from participation in the
WIC Program or which has been
assessed an administrative penalty
pursuant to G.S. 130A-22(c1),
Paragraph (k), or Paragraph (l) of this
Rule as the result of violation of
Paragraphs (g), (h)(1)(A), (h)(1)(B),
(h)(1)(C), (h)(1)(D) or (h)(2)(D) of
this Rule, and if assessed a penalty,
the time during which the
disqualification would have run, had
a penalty not been assessed, is
continuing.
The requirements of this Subparagraph shall
not be met by the transfer or conveyance of
financial interest during the period of
disqualification. Additionally, the
requirements of this Subparagraph shall not be
met even if such transfer or conveyance of
financial interest in a Food Stamp vendor
under Part (b)(15)(A) of this Subparagraph
prematurely ends the disqualification period
applicable to that Food Stamp vendor. The
requirements of this Subparagraph shall apply
until the time the Food Stamp vendor
disqualification otherwise would have expired.
(16) A vendor applicant, excluding free-standing
pharmacies, must have Food Stamp Program
authorization for the store as a prerequisite for
WIC vendor authorization and must provide its
Food Stamp Program authorization number to
the state agency.
(17) A vendor applicant shall not become
authorized as a WIC vendor if the store has
been disqualified from participation in the
WIC Program and the disqualification period
has not expired.
(c) By signing the WIC Vendor Agreement, the vendor agrees
to:
(1) Process WIC program food instruments in
accordance with the terms of this agreement,
state and federal WIC program rules, and
applicable law;
(2) Accept WIC program food instruments in
exchange for WIC supplemental foods.
Supplemental foods are those foods which
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22:17 NORTH CAROLINA REGISTER MARCH 3, 2008
1514
satisfy the requirements of 10A NCAC 43D
.0501;
(3) Provide only the authorized supplemental
foods listed on the food instrument, accurately
determine the charges to the WIC program,
and complete the "Pay Exactly" box on the
food instrument prior to obtaining the
countersignature of the WIC customer. The
WIC customer is not required to get all of the
supplemental foods listed on the food
instrument;
(4) Enter in the "Pay Exactly" box on the food
instrument only the total amount of the current
shelf prices, or less than the current shelf
prices, for the supplemental food actually
provided and shall not charge or collect sales
taxes for the supplemental food provided;
(5) Charge no more for supplemental food
provided to a WIC customer than to a non-
WIC customer or no more than the current
shelf price, whichever is less;
(6) Accept payment from the state WIC Program
only up to the maximum price set by the state
agency for each food instrument within that
vendor's peer group. The maximum price for
each food instrument shall be based on the
maximum prices set by the state agency for
each supplemental food, as described in Part
(b)(4)(A) of this Rule, listed on the food
instrument. A food instrument deposited by a
vendor for payment which exceeds the
maximum price shall be paid at the maximum
price set by the state agency for that food
instrument. Payment to predominantly WIC
vendors for a food instrument shall not exceed
the statewide average for that food instrument.
This average excludes data from
predominantly WIC vendors;
(7) Not charge the state WIC Program more than
the maximum price set by the state agency
under Part (b)(4)(A) of this Rule for each
supplemental food within the vendor's peer
group;
(8) For non-contract brand milk-based and soy-based
infant formulas, excluding exempt infant
formulas, accept payment from the state WIC
Program only up to the maximum price
established for contract brand infant formulas
under Part (b)(4)(A) of this Rule for the
vendor's peer group;
(9) For free-standing pharmacies, provide only
infant formula and WIC-eligible medical
foods;
(10) Excluding free-standing pharmacies, redeem at
least two thousand dollars ($2,000) annually in
WIC supplemental food sales. Failure to
redeem at least two thousand dollars ($2,000)
annually in WIC supplemental food sales shall
result in termination of the WIC Vendor
Agreement. The store must wait 180 days to
reapply for authorization;
(11) Accept WIC program food instruments only
on or between the "Date of Issue" and the
"Participant Must Use By" dates;
(12) Prior to obtaining the countersignature, enter
in the "Date Transacted" box the month, day
and year the WIC food instrument is
exchanged for supplemental food;
(13) Ensure that the food instrument is
countersigned in the presence of the cashier;
(14) Refuse acceptance of any food instrument on
which quantities, signatures or dates have been
altered;
(15) Not transact food instruments in whole or in
part for cash, credit, unauthorized foods, or
non-food items;
(16) Not provide refunds or permit exchanges for
authorized supplemental foods obtained with
food instruments, except for exchanges of an
identical authorized supplemental food when
the original authorized supplemental food is
defective, spoiled, or has exceeded its "sell
by," "best if used by," or other date limiting
the sale or use of the food. An identical
authorized supplemental food means the exact
brand, type and size as the original authorized
supplemental food obtained and returned by
the WIC customer;
(17) Imprint the authorized WIC vendor stamp in
the "Pay the Authorized WIC Vendor Stamped
Here" box on the face of the food instrument
to enable the vendor number to be read during
the Program editing process;
(18) Imprint the vendor's bank deposit stamp or the
vendor's name, address and bank account
number in the "Authorized WIC Vendor
Stamp" box in the endorsement;
(19) Promptly deposit WIC program food
instruments in the vendor's bank. All North
Carolina WIC program food instruments must
be deposited in the vendor's bank within 60
days of the "Date of Issue" on the food
instrument;
(20) Ensure that the authorized WIC vendor stamp
is used only for the purpose and in the manner
authorized by this agreement and assume full
responsibility for the unauthorized use of the
authorized WIC vendor stamp;
(21) Maintain storage so only the staff designated
by the vendor owner or manager have access
to the authorized WIC vendor stamp and
immediately report loss of this stamp to the
local agency;
(22) Notify the local WIC agency of misuse
(attempted or actual) of the WIC program food
instrument(s);
(23) Maintain a minimum inventory of
supplemental foods in the store for purchase.
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22:17 NORTH CAROLINA REGISTER MARCH 3, 2008
1515
Supplemental foods that are outside of the
manufacturer's expiration date do not count
towards meeting the minimum inventory
requirement. The following items and sizes
constitute the minimum inventory of
supplemental foods for vendors in Peer Groups
I through III of Subparagraph (a)(1) of this
Rule, vendors in Peer Groups I through IV of
Subparagraph (a)(2) of this Rule and vendors
in Peer Group IV of Subparagraph (a)(3) of
this Rule:
Food Item Type of Inventory Quantities Required
Milk Whole fluid: gallon Total of 6 gallons
fluid milk
-and-
Skim/lowfat fluid:
gallon
Nonfat dry: quart Total of 5 quarts
package when reconstituted
-or-
Evaporated: 12 ounce 5 cans
can
Cheese 2 varieties in 8 or 16 ounce Total of 6 pounds
package
Cereals 4 types (minimum Total of 12 packages
package size 12 ounce)
Eggs Grade A, large or 6 dozen
extra-large: white
or brown: one dozen
size carton
Juices
Frozen: 11.5-12 ounce 10 containers
container
Single strength: 10 containers
46 ounce container
Orange juice must be available
in frozen and single strength.
A second flavor must be
available in frozen or single
strength.
Dried Peas and Beans 2 varieties: 3 packages
one pound package
or
Peanut Butter Plain (smooth, 3 containers
crunchy, or whipped;
No reduced fat):
18 ounce container
Infant Cereal Plain-no fruit added: 6 boxes
2 cereal grains
(one must be rice);
8- ounce box; brand
specified in Vendor
Agreement
Infant Formula milk-based concentrate; 31 cans
13 ounce
-and-soy-
based concentrate; 15 cans
13 ounce
-and-milk-
based powder; 9 cans
12 – 14.3 ounce
-and-soy-
based powder; 4 cans
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22:17 NORTH CAROLINA REGISTER MARCH 3, 2008
1516
12 – 14.3 ounce
Brand specified in Vendor
Agreement
Tuna Chunk light in water: 4 cans
6-6.5 ounce can
Carrots Raw, canned or frozen 2 packages/cans
14.5-16 ounce size
All vendors in Peer Groups I through III of Subparagraph (a)(1) of this Rule, Peer Groups I through IV of
Subparagraph (a)(2) of this Rule and Peer Groups IV and V of Subparagraph (a)(3) of this Rule shall supply milk or
soy-based infant formula in 32 ounce ready-to-feed or lactose-free infant formula in 32 ounce ready-to-feed or
powder within 48 hours of request by the state or local WIC agency;
(24) Ensure that all supplemental foods in the store
for purchase are within the manufacturer's
expiration date;
(25) Permit the purchase of supplemental food
without requiring other purchases;
(26) Attend, or cause a manager or other authorized
store representative to attend, annual vendor
training class upon notification of class by the
local agency;
(27) Inform and train vendor's cashiers and other
staff on WIC Program requirements;
(28) Be accountable for the actions of its owners,
officers, managers, agents, and employees who
commit vendor violations;
(29) Allow monitoring and inspection of the store
premises and procedures to ensure compliance
with the agreement and state and federal WIC
Program rules, regulations and statutes. This
includes allowance of access to all WIC food
instruments at the store, vendor records
pertinent to the purchase and sale of WIC
supplemental foods, including invoices, copies
of purchase orders, and any other proofs of
purchase, federal and state corporate and
individual income tax and sales and use tax
returns and all records pertinent to these
returns, and books and records of all financial
and business transactions. These records must
be retained by the vendor for a period of three
years or until any audit pertaining to these
records is resolved, whichever is later. Failure
or inability to provide these records or
providing false records for an inventory audit
shall be deemed a violation of 7 C.F.R.
246.12(l)(1)(iii)(B) and Subparagraph (g)(1) of
this Rule;
(30) Submit a current accurately completed WIC
Price List when signing this agreement, and by
April 1and October 1 of each year. The
vendor also agrees to submit a WIC Price List
within one week of any written request by the
state or local WIC agency. Failure to submit a
WIC Price List as required by this
Subparagraph within 30 days of the required
submission date shall result in disqualification
of the vendor from the WIC Program in
accordance with Part (h)(1)(D) of this Rule;
(31) Reimburse the state agency within 30 days of
written notification of a claim assessed due to
a vendor violation that affects payment to the
vendor or a claim assessed due to the
unauthorized use of the authorized WIC
vendor stamp. The state agency shall deny
payment or assess a claim in the amount of the
full purchase price of each food instrument
rendered invalid under Subparagraphs (a)(2),
(a)(5), (a)(6) or (a)(7) of Rule .0704 of this
Section. Denial of payment by the state
agency or payment of a claim by the vendor
for a vendor violation(s) shall not absolve the
vendor of the violation(s). The vendor shall
also be subject to any vendor sanctions
authorized under this Rule for the vendor
violation(s);
(32) Not seek restitution from the WIC customer
for reimbursement paid by the vendor to the
state agency or for WIC food instruments not
paid or partially paid by the state agency.
Additionally, the vendor shall not charge the
WIC customer for authorized supplemental
foods obtained with food instruments;
(33) Not contact a WIC customer outside the store
regarding the transaction or redemption of
WIC food instruments;
(34) Notify the local WIC agency in writing at least
30 days prior to a change of ownership,
change in location, cessation of operations, or
withdrawal from the WIC Program. Change
of ownership, change in location of more than
three miles from the vendor's previous
location, cessation of operations, withdrawal
from the WIC Program or disqualification
from the WIC Program shall result in
termination of the WIC Vendor Agreement by
the state agency. Change of ownership,
change in location, ceasing operations,
withdrawal from the WIC Program or
nonrenewal of the WIC Vendor Agreement
shall not stop a disqualification period
applicable to the store;
(35) Return the authorized WIC vendor stamp to
the local WIC agency upon termination of this
agreement or disqualification from the WIC
Program;
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22:17 NORTH CAROLINA REGISTER MARCH 3, 2008
1517
(36) Offer WIC customers the same courtesies as
offered to other customers;
(37) Not provide incentive items to WIC customers
unless each incentive item is less than two
dollars ($2.00) in cost to the vendor in
accordance with federal regulations. If
incentive items are offered to WIC customers,
no more than one incentive item per visit is
permitted. Vendors shall not provide to WIC
customers transportation to or from the
vendor's premises, delivery of supplemental
foods, lottery tickets, nor cash gifts. The
limitations of this Subparagraph apply only to
predominantly WIC vendors;
(38) Reapply to continue to be authorized beyond
the period of its current WIC Vendor
Agreement. Additionally, a store must reapply
to become authorized following the expiration
of a disqualification period or termination of
the Agreement. In all cases, the vendor
applicant shall be subject to the vendor
selection criteria of Paragraph (b) of this Rule;
and
(39) Comply with all the requirements for vendor
applicants of Subparagraphs (b)(4) and (b)(7)
through (b)(16) of this Rule throughout the
term of authorization. The state agency may
reassess a vendor at any time during the
vendor's period of authorization to determine
compliance with these requirements. The state
agency shall terminate the WIC Vendor
Agreement of any vendor that fails to comply
with Subparagraphs (b)(4), (b)(8), (b)(9),
(b)(12), (b)(13) or (b)(15) of this Rule during
the vendor's period of authorization, and
terminate the Agreement of or sanction or both
any vendor that fails to comply with
Subparagraphs (b)(7), (b)(11), (b)(14) or
(b)(16) of this Rule during the vendor's period
of authorization.
(d) By signing the WIC Vendor Agreement, the local agency
agrees to the following:
(1) Provide annual vendor training classes on WIC
procedures and rules;
(2) Monitor the vendor's performance under this
agreement to ensure compliance with the
agreement, state and federal WIC program
rules, regulations, and applicable law. A
minimum of one-third of all authorized
vendors shall be monitored within a contract
year (October 1 through September 30) and all
vendors shall be monitored at least once within
three consecutive contract years. Any vendor
shall be monitored within one week of written
request by the state agency;
(3) Provide vendors with the North Carolina WIC
Vendor Manual, all Vendor Manual
amendments, blank WIC Price Lists, and the
authorized WIC vendor stamp indicated on the
signature page of the WIC Vendor Agreement;
(4) Assist the vendor with questions which may
arise under this agreement or the vendor's
participation in the WIC Program; and
(5) Keep records of the transactions between the
parties under this agreement pursuant to 10A
NCAC 43D .0206.
(e) In order for a food retailer or free-standing pharmacy to
participate in the WIC Program a current WIC Vendor
Agreement must be signed by the vendor, the local WIC agency,
and the state agency.
(f) If an application for status as an authorized WIC vendor is
denied, the applicant is entitled to an administrative appeal as
described in Section .0800 of this Subchapter.
(g) Title 7 C.F.R. 246.12(l)(1)(i) through (vi) and (xii) are
incorporated by reference with all subsequent amendments and
editions. In accordance with 7 CFR 246.12(l)(1)(i), the state
agency shall not allow imposition of a civil money penalty in
lieu of disqualification for a vendor permanently disqualified. A
pattern, as referenced in 7 CFR 246.12 (l)(1)(iii)(B) through (F)
and 246.12(l)(1)(iv), shall be established as follows:
(1) claiming reimbursement for the sale of an
amount of a specific supplemental food item
which exceeds the store's documented
inventory of that supplemental food item for
six or more days within a 60-day period. The
six or more days do not have to be consecutive
days within the 60-day period. Failure or
inability to provide records or providing false
records required under Subparagraph (c)(29)
of this Rule for an inventory audit shall be
deemed a violation of 7 C.F.R.
246.12(l)(1)(iii)(B) and this Subparagraph;
(2) two occurrences of vendor overcharging
within a 12-month period;
(3) two occurrences of receiving, transacting or
redeeming food instruments outside of
authorized channels, including the use of an
unauthorized vendor or an unauthorized
person within a 12-month period;
(4) two occurrences of charging for supplemental
food not received by the WIC customer within
a 12-month period;
(5) two occurrences of providing credit or non-food
items, other than alcohol, alcoholic
beverages, tobacco products, cash, firearms,
ammunition, explosives, or controlled
substances as defined in 21 U.S.C. 802, in
exchange for food instruments within a 12-
month period; or
(6) three occurrences of providing unauthorized
food items in exchange for food instruments,
including charging for supplemental food
provided in excess of those listed on the food
instrument within a 12-month period.
(h) Title 7 C.F.R. Section 246.12(l)(2)(i) is incorporated by
reference with all subsequent amendments and editions. Except
as provided in 7 C.F.R. 246.12 (l)(1)(xii), a vendor shall be
APPROVED RULES
22:17 NORTH CAROLINA REGISTER MARCH 3, 2008
1518
disqualified from the WIC Program for the following state-established
violations in accordance with the sanction system
below. The total period of disqualification shall not exceed one
year for state-established violations investigated as part of a
single investigation, as defined in Paragraph (i) of this Rule:
(1) When a vendor commits any of the following
violations, the state-established
disqualification period shall be:
(A) 90 days for each occurrence of failure
to properly transact a WIC food
instrument by not completing the date
or purchase price on the WIC food
instrument before obtaining the
countersignature, by not obtaining the
countersignature in the presence of
the cashier, or by accepting a WIC
food instrument prior to the "Date of
Issue" or after the "Participant Must
Use By" dates on the food instrument;
(B) 60 days for each occurrence of
requiring a cash purchase to transact a
WIC food instrument;
(C) 30 days for each occurrence of
requiring the purchase of a specific
brand when more than one WIC
supplemental food brand is available;
and
(D) 30 days for each occurrence of failure
to submit a WIC Price List as
required by Subparagraph (c)(30) of
this Rule.
(2) When a vendor commits any of the following
violations, the vendor shall be assessed
sanction points as follows for each occurrence:
(A) 2.5 points for:
(i) stocking WIC supplemental
foods outside of the
manufacturer's expiration
date; or
(ii) unauthorized use of the
"WIC" acronym or the WIC
logo in accordance with
Paragraph (b)(10) of this
Rule.
(B) 5 points for:
(i) failure to attend annual
vendor training;
(ii) failure to stock minimum
inventory;
(iii) failure to mark the current
shelf prices of all WIC
supplemental foods on the
foods or have the prices
posted on the shelf or
display case; or
(iv) offering improper incentives,
free merchandise, or services
by a predominantly WIC
vendor in accordance with
Subparagraph (c)(37) of this
Rule.
(C) 7.5 points for:
(i) discrimination on the basis
of WIC participation
(separate WIC lines, denying
trading stamps, etc.); or
(ii) contacting a WIC customer
in an attempt to recoup funds
for food instrument(s) or
contacting a WIC customer
outside the store regarding
the transaction or
redemption of WIC food
instruments.
(D) 15 points for:
(i) failure to allow monitoring
of a store by WIC staff when
required;
(ii) failure to provide WIC food
instrument(s) for review
when requested;
(iii) failure to provide store
inventory records when
requested by WIC staff,
except as provided in
Subparagraph (c)(29) and
Subparagraph (g)(1) of this
Rule for failure or inability
to provide records for an
inventory audit;
(iv) nonpayment of a claim made
by the state agency;
(v) providing false information
on vendor records
(application, vendor
agreement, price list, WIC
food instrument(s),
monitoring forms), except as
provided in Subparagraph
(c)(29) and Subparagraph
(g)(1) of this Rule for
providing false records for
an inventory audit; or
(vi) failure to purchase infant
formula, exempt infant
formula, and WIC-eligible
medical food from an
authorized supplier.
(3) For the violations listed in Subparagraph (h)(2)
of this Rule, all sanction points assessed
against a vendor remain on the vendor's record
for 12 months or until the vendor is
disqualified as a result of those points. If a
vendor accumulates 15 or more points, the
vendor shall be disqualified. The nature of the
violation(s) and the number of violations, as
represented by the points assigned in
Subparagraph (h)(2) of this Rule, are used to
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1519
calculate the period of disqualification. The
formula used to calculate the disqualification
period is the number of points assigned to the
violation carrying the highest number of
sanction points multiplied by 18 days.
Additionally, if the vendor has accumulated
more than 15 points, 18 days shall be added to
the disqualification period for each point over
15 points.
(i) For investigations pursuant to this Section, a single
investigation is:
(1) Compliance buy(s) conducted by undercover
investigators within a 12-month period to
detect the following violations:
(A) buying or selling food instruments for
cash (trafficking);
(B) selling firearms, ammunition,
explosives, or controlled substances
as defined in 21 U.S.C. 802, in
exchange for food instruments;
(C) selling alcohol or alcoholic beverages
or tobacco products in exchange for
food instruments;
(D) vendor overcharging;
(E) receiving, transacting, or redeeming
food instruments outside of
authorized channels, including the
use of an unauthorized vendor or an
unauthorized person;
(F) charging for supplemental food not
received by the WIC customer;
(G) providing credit or non-food items,
other than alcohol, alcoholic
beverages, tobacco products, cash,
firearms, ammunition, explosives, or
controlled substances as defined in 21
U.S.C. 802, in exchange for food
instruments;
(H) providing unauthorized food items in
exchange for food instruments,
including charging for supplemental
food provided in excess of those
listed on the food instrument;
(I) failure to properly transact a WIC
food instrument;
(J) requiring a cash purchase to transact a
WIC food instrument; or
(K) requiring the purchase of a specific
brand when more than one WIC
supplemental food brand is available.
(2) Monitoring reviews of a vendor conducted by
WIC staff within a 12-month period which
detect the following violations:
(A) failure to stock minimum inventory;
(B) stocking WIC supplemental food
outside of the manufacturer's
expiration date;
(C) failure to allow monitoring of a store
by WIC staff when required;
(D) failure to provide WIC food
instrument(s) for review when
requested;
(E) failure to provide store inventory
records when requested by WIC staff;
or
(F) failure to mark the current shelf
prices of all WIC supplemental foods
on the foods or have the prices posted
on the shelf or display case.
(3) Any other method used by the state or local
agency to detect the following violations by a
vendor within a 12-month period:
(A) failure to attend annual vendor
training;
(B) failure to submit a WIC Price List as
required by Subparagraph (c)(30) of
this Rule;
(C) discrimination on the basis of WIC
participation (separate WIC lines,
denying trading stamps, etc.);
(D) contacting a WIC customer in an
attempt to recoup funds or food
instrument(s) or contacting a WIC
customer outside the store regarding
the transaction or redemption of WIC
food instruments;
(E) nonpayment of a claim made by the
state agency;
(F) providing false information on vendor
records (application, vendor
agreement, price list, WIC food
instrument(s), monitoring forms); or
(G) claiming reimbursement for the sale
of an amount of a specific
supplemental food item which
exceeds the store's documented
inventory of that supplemental food
item for a specific period of time, or
failure or inability to provide records
or providing false records required
under Subparagraph (c)(29) of this
Rule for an inventory audit.
(j) The Food Stamp Program disqualification provisions in 7
C.F.R. 246.12(l)(1)(vii) are incorporated by reference with all
subsequent amendments and editions.
(k) The participant access provisions of 7 C.F.R.
246.12(l)(1)(ix) and 246.12(l)(8) are incorporated by reference
with all subsequent amendments and editions. The existence of
any of the factors listed in Parts (l)(3)(A), (l)(3)(B) or (l)(3)(C)
of this Rule shall conclusively show lack of inadequate
participant access provided there is no geographic barrier, such
as an impassable mountain or river, to using the other authorized
WIC vendors referenced in these Subparagraphs. The agency
shall not consider other indicators of inadequate participant
access when any of these factors exist.
(l) The following provisions apply to civil money penalties
assessed in lieu of disqualification of a vendor:
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22:17 NORTH CAROLINA REGISTER MARCH 3, 2008
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(1) The civil money penalty formula in 7 C.F.R.
246.12(l)(l)(x) is incorporated by reference
with all subsequent amendments and editions,
provided that the vendor's average monthly
redemptions shall be calculated by using the
six-month period ending with the month
immediately preceding the month during
which the notice of administrative action is
dated.
(2) The state agency may also impose civil
money penalties in accordance with G.S.
130A-22(c1) in lieu of disqualification of a
vendor for the state-established violations
listed in Paragraph (h) of this Rule when the
state agency determines that disqualification of
a vendor would result in participant hardship
in accordance with Subparagraph (l)(3) of this
Rule.
(3) In determining whether to disqualify a WIC
vendor for the state-established violations
listed in Paragraph (h) of this Rule, the agency
shall not consider other indicators of hardship
if any of the following factors, which
conclusively show lack of hardship, are found
to exist:
(A) the noncomplying vendor is located
outside of the limits of a city, as
defined in G.S. 160A-2, and another
WIC vendor is located within seven
miles of the noncomplying vendor;
(B) the noncomplying vendor is located
within the limits of a city, as defined
in G.S. 160A-2, and another WIC
vendor is located within three miles
of the noncomplying vendor; or
(C) a WIC vendor, other than the
noncomplying vendor, is located
within one mile of the local agency at
which WIC participants pick up their
food instruments.
(4) The provisions for failure to pay a civil money
penalty in 7 C.F.R. 246.12(l)(6) are
incorporated by reference with all subsequent
amendments and editions.
(m) The provisions of 7 C.F.R. 246.12(l)(1)(viii) prohibiting
voluntary withdrawal from the WIC Program or nonrenewal of
the WIC Vendor Agreement as an alternative to disqualification
are incorporated by reference with all subsequent amendments
and editions.
(n) The provision in 7 C.F.R. 246.12(l)(3) regarding prior
warning to vendors is incorporated by reference with all
subsequent amendments and editions.
(o) The state agency may set off payments to an authorized
vendor if the vendor fails to reimburse the state agency in
accordance with Subparagraph (c)(31) of this Rule.
(p) In accordance with 7 C.F.R. 246.12(l)(7) or 246.12(u)(5) or
both, North Carolina's procedures for dealing with abuse of the
WIC program by authorized WIC vendors do not exclude or
replace any criminal or civil sanctions or other remedies that
may be applicable under any federal and state law.
(q) Notwithstanding other provisions of this Rule, for the
purpose of providing a one-time payment to a non-authorized
store for WIC food instruments accepted by the store, an
agreement for a one-time payment need only be signed by the
store manager and the state agency. The store may request such
one-time payment directly from the state agency. The store
manager shall sign an agreement indicating that the store has
provided foods as prescribed on the food instrument, charged
current shelf prices or less than current shelf prices, not charged
sales tax, and verified the identity of the WIC customer. Any
agreement entered into in this manner shall automatically
terminate upon payment of the food instrument in question.
After entering into an agreement for a one-time payment, a non-authorized
store shall not be allowed to enter into any further
one-time payment agreements for WIC food instruments
accepted thereafter.
(r) Except as provided in 7 C.F.R. 246.18(a)(2), an authorized
WIC vendor shall be given at least 15 days advance written
notice of any adverse action which affects the vendor's
participation in the WIC Program. The vendor appeal
procedures shall be in accordance with 10A NCAC 43D .0800.
History Note: Authority G.S. 130A-361; 7 C.F.R. 246; 42
U.S.C. 1786;
Eff. July 1, 1981;
Amended Eff. August 1, 1995; October 1, 1993; May 1, 1991;
December 1, 1990;
Temporary Amendment Eff. June 23, 2000; May 17, 2000;
Amended Eff. April 1, 2001;
Temporary Amendment Eff. September 1, 2002; July 1, 2002;
Amended Eff. November 1, 2005; August 1, 2004;
Temporary Amendment Eff. July 1, 2006;
Amended Eff. February 1, 2008; April 1, 2007.
TITLE 11 – DEPARTMENT OF INSURANCE
11 NCAC 06A .0101 DEFINITIONS
(a) In this Chapter, unless the context otherwise requires:
(1) "Adjusting company" means any insurance
company, independent adjusting company, or
public adjusting company adjusting claims in
this State.
(2) "Agent Services Division" or "Division"
means the Agent Services Division of the
North Carolina Department of Insurance, the
Division responsible for the licensing,
education and regulation of agents and other
licensees.
(3) "Professional Testing Service" or "Service"
means the organization specializing in the
development and administration of licensing
examinations on a contract basis.
(4) "State Licensing Examination" or
"Examination" means a collection of items
designed to test the applicant's knowledge of
APPROVED RULES
22:17 NORTH CAROLINA REGISTER MARCH 3, 2008
1521
the basic concepts, principles and laws
relevant to the insurance profession to
determine the competence to be licensed in
North Carolina.
(b) The definitions contained in G.S. 58-33-10 are incorporated
in this Chapter by reference.
History Note: Authority G.S. 58-2-40; 58-33-30(e)(h);
Eff. February 1, 1976;
Readopted Eff. June 12, 1978;
Amended Eff. February 1, 2008; October 1, 1990; February 1,
1989; July 1, 1986.
11 NCAC 06A .0211 N.C. NON-RESIDENT BROKER'S
INSURANCE BOND
History Note: Authority G.S. 58-33-30(f)(1);
Eff. February 1, 1976;
Readopted Eff. June 12, 1978;
Amended Eff. February 1, 1989;
Repealed Eff. February 1, 2008.
11 NCAC 06A .0217 NORTH CAROLINA NOTICE OF
CANCELLATION
History Note: Authority G.S. 58-33-55(a)(b);
Eff. February 1, 1976;
Readopted Eff. June 12, 1978;
Amended Eff. February 1, 1989;
Repealed Eff. February 1, 2008.
11 NCAC 06A .0304 RESPONSIBILITY OF
APPLICANT AT EXAMINATION SITE
(a) Applicants who have not previously failed the same
examination shall bring to the examination site the Examination
Admission Ticket/Certificate of Course Completion, their
confirmation numbers obtained from the testing service at the
time of registration, and two forms of proof of identity, one of
which must be photo bearing.
(b) Applicants who have previously failed an examination may
retake the examination and shall pay applicable fees for each
administration.
(c) Applicants taking the life, accident and health or sickness,
Medicare supplement, long term care, personal lines, property,
or casualty examination shall bring to the examination site an
Examination Admission Ticket/Certificate of Course
Completion, validated by an approved prelicensing school or by
the Division indicating that the applicant has successfully
completed the mandatory prelicensing education requirements as
specified in G.S. 58-33-30(d)(2). The Examination Admission
Ticket/Certificate of Course Completion is valid for 90 days
from the date of course completion or a maximum of five
examination sittings, whichever occurs first.
(d) No applications shall be supplied at the examination site for
completion by applicants; nor shall required supplies be
furnished to applicants.
(e) Applicants shall arrive at the examination site at the time
specified in the current examination schedule.
History Note: Authority G.S. 58-2-40; 58-33-30(d)(2); 58-
33-31; 58-33-30(e); 58-33-125;
Eff. February 1, 1976;
Readopted Eff. June 12, 1978;
Amended Eff. February 1, 2008; April 1, 2003; April 1, 1996;
October 1, 1990; February 1, 1989.
11 NCAC 06A .0402 LICENSING OF RESIDENT
AGENT, LTD REPRESENTATIVE AND ADJUSTER
(a) An applicant shall hold a life license before making
application for a variable life and variable annuity product
license. An agent licensed to sell variable life and variable
annuity products shall be appointed by a company authorized to
sell variable annuities and variable life insurance products in
North Carolina. The company shall verify that the agent has met
the requirements of the NASD or its successor organization.
(b) A limited representative shall be appointed with each
company for which he will solicit business for the following
kinds of insurance:
(1) Dental services;
(2) Limited line credit insurance;
(3) Motor club;
(4) Prearrangement insurance, as defined in G.S.
58-60-35(a)(2), when offered or sold by a
preneed sales licensee licensed under Article
13D of Chapter 90 of the General Statutes;
(5) Travel, accident and baggage; or
(6) Vehicle service agreements and mechanical
breakdown insurance.
(c) Responsibility of insurance companies for forms:
(1) Companies shall have on file with the Division
the address of one central licensing office and
the individual within such office to which all
correspondence, licenses, and invoices will be
forwarded.
(2) Companies shall have on file with the Division
the name of the individual responsible for all
agent appointments and termination of agent
appointments submitted by the company to the
Division.
(3) A company shall verify the licensure of an
agent before the company appoints the agent.
(4) Companies shall notify the Division within 10
days after any change of address of the central
licensing office and of any change of the
individual within such office to which all
correspondence, licenses, and invoices will be
forwarded.
(d) Responsibility of the agent, limited representative and
adjuster:
(1) An applicant who must take the examination
shall comply with Section .0300 of this
Subchapter.
(2) A person, after surrender or termination of a
license for such period of time that he is no
longer eligible for waiver of the examination,
shall meet all legal requirements for previously
unlicensed persons.
APPROVED RULES
22:17 NORTH CAROLINA REGISTER MARCH 3, 2008
1522
(3) Every licensee shall, upon demand from the
Division, furnish in writing any information
relating to the licensee's insurance business
within 10 business days after the demand.
(e) An applicant for a resident license shall, if applicable, obtain
an original letter of clearance from his former state of residency
certifying the kinds of insurance for which the applicant was
licensed, that all licenses held in that state have been canceled
and that the applicant was in good standing in that state at the
time of the cancellation of licenses. A letter of clearance is valid
for 90 days from date of issuance.
(f) A person who applies for a license before January 1, 2008,
shall receive the license in accordance with G.S. 58-33-26(c1)
without paying an additional registration fee if the license is
issued on or after January 1, 2008.
(g) Only individuals may apply for limited representative and
adjuster licenses.
History Note: Authority G.S. 58-2-40; 58-2-195(a); 58-33-
26; 58-33-30; 58-33-66;
Eff. February 1, 1976;
Readopted Eff. June 12, 1978;
Amended Eff. February 1, 2008; April 1, 2003; February 1,
1996; October 1, 1990; February 1, 1989.
11 NCAC 06A .0404 LICENSING OF BROKER
(a) An applicant shall be a licensed agent in North Carolina for
each kind of insurance to be brokered.
(b) A broker's license gives the holder authority to broker only
those kinds of insurance for which he holds an agent's license.
Brokering shall be done through a licensed and appointed agent
of the company with which the business is being placed. A
broker's license does not confer binding authority; it only gives
authority to share in commissions with a writing agent.
(c) Each applicant shall file with his application a surety bond
or cash, certificates of deposit, or securities as provided by
statute. Any cash, certificate of deposit, or securities deposited
in lieu of the surety bond shall be held in accordance with 11
NCAC 11B .0100.
History Note: Authority G.S. 58-2-40; 58-33-30(f),(h)(1);
Eff. February 1, 1976;
Readopted Eff. June 12, 1978;
Amended Eff. October 1, 1990; February 1, 1989; July 1, 1986;
Temporary Amendment Eff. October 3, 1991 For a Period of
180 Days to Expire on March 30, 1992;
Amended Eff. February 1, 2008; March 1, 1992.
11 NCAC 06A .0405 LICENSING OF NONRESIDENT
BROKER
History Note: Filed as a Temporary Amendment Eff. October
3, 1991 For a Period of 180 Days to Expire
on March 30, 1992;
Authority G.S. 58-2-40; 58-33-30(f),(h)(2); 58-33-125(a);
Eff. February 1, 1976;
Readopted Eff. June 12, 1978;
Amended Eff. March 1, 1992; October 1, 1990; February 1,
1989;
Repealed Eff. February 1, 2008.
11 NCAC 06A .0408 LICENSING OF MOTOR
VEHICLE DAMAGE APPRAISER
History Note: Authority G.S. 58-2-40; 58-33-10(14);
58-33-30;
Eff. February 1, 1976;
Readopted Eff. June 12, 1978;
Amended Eff. October 1, 1990; February 1, 1989; July 1, 1986;
Repealed Eff. February 1, 2008.
11 NCAC 06A .0414 ADJUSTER'S LEARNER'S
PERMIT
History Note: Authority G.S. 58-2-40; 58-33-70;
Eff. October 1, 1990;
Amended Eff. April 1, 2003;
Repealed Eff. February 1, 2008.
11 NCAC 06A .0604 PERSONAL INTERVIEWS
History Note: Authority G.S. 58-33-45;
Eff. February 1, 1976;
Readopted Eff. June 12, 1978;
Amended Eff. February 1, 1989;
Repealed Eff. February 1, 2008.
11 NCAC 06A .0701 GENERAL REQUIREMENTS
(a) This Section applies to individuals attempting to obtain a
resident license to solicit property, casualty, personal lines, life,
accident and health, or sickness insurance in North Carolina
except as specifically exempted by Paragraphs (b) and (c) of this
Rule.
(b) Individuals who are exempt from the requirement for a
written examination pursuant to G.S. 58-33-35 are exempt from
prelicensing education requirements.
(c) Individuals holding one or more of the following insurance
designations are exempt from prelicensing education
requirements:
(1) Accident and health or sickness:
(A) Registered Health Underwriter
(RHU);
(B) Certified Employee Benefits
Specialist (CEBS);
(C) Registered Employee Benefits
Consultant (REBC); and
(D) Health Insurance Associate (HIA).
(2) Life:
(A) Certified Insurance Counselor (CIC);
(B) Certified Employee Benefits
Specialist (CEBS); and
(C) Certified Financial Planner (CFP).
(3) Property:
(A) Accredited Advisor in Insurance
(AAI);
(B) Associate in Risk Management
(ARM); and
(C) Certified Insurance Counselor (CIC).
APPROVED RULES
22:17 NORTH CAROLINA REGISTER MARCH 3, 2008
1523
(4) Casualty:
(A) Accredited Advisor in Insurance
(AAI);
(B) Associate in Risk Management
(ARM); and
(C) Certified Insurance Counselor (CIC).
(5) Personal lines:
(A) Accredited Advisor in Insurance
(AAI);
(B) Associate in Risk Management
(ARM); and
(C) Certified Insurance Counselor (CIC).
(6) Property, casualty, personal lines, life,
accident and health or sickness:
(A) Holder of degree in

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NORTH CAROLINA
REGISTER
VOLUME 22 ● ISSUE 17 ● Pages 1491 - 1583
March 3, 2008
I. EXECUTIVE ORDERS
Executive Order No. 135 .................................................................................... 1491
II. IN ADDITION
Decision Letters on "Changes Affecting Voting" from US Attorney General 1492
Brownfields Property – Tremont Partners, LP................................................ 1493
Notice of Application for Approval of Wastewater System - DENR ............. 1494
Notice of Change of Location for Public Hearing .......................................... 1495
III. PROPOSED RULES
Agriculture and Consumer Services, Department of
Pesticide Board ............................................................................................... 1496 – 1497
Occupational Licensing Boards and Commissions
Massage and Bodywork Therapy, Board of.................................................... 1497 – 1499
Speech and Language Pathologists and Audiologists, .................................... 1499
Board of Examiners for
IV. APPROVED RULES........................................................................................ 1500 – 1563
Environment and Natural Resources, Department of
Coastal Resources Commission
Department
Marine Fisheries Commission
Health and Human Services, Department of
Health Service Regulation, Division of
Public Health, Commission for
Social Services Commission
Insurance, Department
Department
Justice, Department of
Campus and Company Police Program
Private Protective Services Board
Occupational Licensing Boards and Commissions
Dental Examiners, Board of
Medical Board
Pharmacy, Board of
Revenue, Department of
Department
State Personnel, Office of
State Personnel Commission
Transportation, Department
Department
V. RULES REVIEW COMMISSION ................................................................. 1564 – 1578
VI. CONTESTED CASE DECISIONS
Index to ALJ Decisions ...................................................................................... 1579 – 1583
This publication is printed on permanent, acid-free paper in compliance with G.S. 125-11.13
Contact List for Rulemaking Questions or Concerns
For questions or concerns regarding the Administrative Procedure Act or any of its components, consult
with the agencies below. The bolded headings are typical issues which the given agency can address,
but are not inclusive.
Rule Notices, Filings, Register, Deadlines, Copies of Proposed Rules, etc.
Office of Administrative Hearings
Rules Division
Capehart-Crocker House (919) 733-2678
424 North Blount Street (919) 733-3462 FAX
Raleigh, North Carolina 27601-2817
contact: Molly Masich, Codifier of Rules molly.masich@ncmail.net (919) 733-3367
Dana Vojtko, Publications Coordinator dana.vojtko@ncmail.net (919) 733-2679
Julie Edwards, Editorial Assistant julie.edwards@ncmail.net (919) 733-2696
Felicia Williams, Editorial Assistant felicia.s.williams@ncmail.net (919) 733-3361
Rule Review and Legal Issues
Rules Review Commission
1307 Glenwood Ave., Suite 159 (919) 733-2721
Raleigh, North Carolina 27605 (919) 733-9415 FAX
contact: Joe DeLuca Jr., Commission Counsel joe.deluca@ncmail.net (919) 715-8655
Bobby Bryan, Commission Counsel bobby.bryan@ncmail.net (919) 733-0928
Angela Person, Administrative Assistant angela.person@ncmail.net (919) 733-2721
Fiscal Notes & Economic Analysis
Office of State Budget and Management
116 West Jones Street (919) 807-4700
Raleigh, North Carolina 27603-8005 (919) 733-0640 FAX
contact: William Crumbley, Economic Analyst william.crumbley@ncmail.net (919) 807-4740
Governor’s Review
Reuben Young reuben.young@ncmail.net
Legal Counsel to the Governor (919) 733-5811
116 West Jones Street(919)
Raleigh, North Carolina 27603
Legislative Process Concerning Rule-making
Joint Legislative Administrative Procedure Oversight Committee
545 Legislative Office Building
300 North Salisbury Street (919) 733-2578
Raleigh, North Carolina 27611 (919) 715-5460 FAX
contact: Karen Cochrane-Brown, Staff Attorney karenc@ncleg.net
Jeff Hudson, Staff Attorney jeffreyh@ncleg.net
County and Municipality Government Questions or Notification
NC Association of County Commissioners
215 North Dawson Street (919) 715-2893
Raleigh, North Carolina 27603
contact: Jim Blackburn jim.blackburn@ncacc.org
Rebecca Troutman rebecca.troutman@ncacc.org
NC League of Municipalities (919) 715-4000
215 North Dawson Street
Raleigh, North Carolina 27603
contact: Anita Watkins awatkins@nclm.org
This publication is printed on permanent, acid-free paper in compliance with G.S. 125-11.13
NORTH CAROLINA REGISTER
Publication Schedule for January 2008 – December 2008
FILING DEADLINES NOTICE OF TEXT PERMANENT RULE TEMPORARY
RULES
Volume &
issue
number
Issue date Last day
for filing
Earliest date for
public hearing
End of required
comment
period
Deadline to submit
to RRC
for review at
next meeting
Earliest Eff.
Date of
Permanent Rule
Delayed Eff. Date of
Permanent Rule
31st legislative day of the
session beginning:
270th day from publication
in the Register
22:13 01/02/08 12/06/07 01/17/08 03/03/08 03/20/08 05/01/08 05/13/08 09/28/08
22:14 01/15/08 12/19/07 01/30/08 03/17/08 03/20/08 05/01/08 05/13/08 10/11/08
22:15 02/01/08 01/10/08 02/16/08 04/01/08 04/21/08 06/01/08 01/2009 10/28/08
22:16 02/15/08 01/25/08 03/01/08 04/15/08 04/21/08 06/01/08 01/2009 11/11/08
22:17 03/03/08 02/11/08 03/18/08 05/02/08 05/20/08 07/01/08 01/2009 11/28/08
22:18 03/17/08 02/25/08 04/01/08 05/16/08 05/20/08 07/01/08 01/2009 12/12/08
22:19 04/01/08 03/10/08 04/16/08 06/02/08 06/20/08 08/01/08 01/2009 12/27/08
22:20 04/15/08 03/25/08 04/30/08 06/16/08 06/20/08 08/01/08 01/2009 01/10/09
22:21 05/01/08 04/10/08 05/16/08 06/30/08 07/21/08 09/01/08 01/2009 01/26/09
22:22 05/15/08 04/24/08 05/30/08 07/14/08 07/21/08 09/01/08 01/2009 02/09/09
22:23 06/02/08 05/09/08 06/17/08 08/01/08 08/20/08 10/01/08 01/2009 02/27/09
22:24 06/16/08 05/23/08 07/01/08 08/15/08 08/20/08 10/01/08 01/2009 03/13/09
23:01 07/01/08 06/10/08 07/16/08 09/02/08 09/22/08 11/01/08 01/2009 03/28/09
23:02 07/15/08 06/23/08 07/30/08 09/15/08 09/22/08 11/01/08 01/2009 04/11/09
23:03 08/01/08 07/11/08 08/16/08 09/30/08 10/20/08 12/01/08 01/2009 04/28/09
23:04 08/15/08 07/25/08 08/30/08 10/14/08 10/20/08 12/01/08 01/2009 05/12/09
23:05 09/02/08 08/11/08 09/17/08 11/03/08 11/20/08 01/01/09 01/2009 05/30/09
23:06 09/15/08 08/22/08 09/30/08 11/14/08 11/20/08 01/01/09 01/2009 06/12/09
23:07 10/01/08 09/10/08 10/16/08 12/01/08 12/22/08 02/01/09 05/2010 06/28/09
23:08 10/15/08 09/24/08 10/30/08 12/15/08 12/22/08 02/01/09 05/2010 07/12/09
23:09 11/03/08 10/13/08 11/18/08 01/02/09 01/20/09 03/01/09 05/2010 07/31/09
23:10 11/17/08 10/24/08 12/02/08 01/16/09 01/20/09 03/01/09 05/2010 08/14/09
23:11 12/01/08 11/05/08 12/16/08 01/30/09 02/20/09 04/01/09 05/2010 08/28/09
23:12 12/15/08 11/20/08 12/30/08 02/13/09 02/20/09 04/01/09 05/2010 09/11/09
This publication is printed on permanent, acid-free paper in compliance with G.S. 125-11.13
EXPLANATION OF THE PUBLICATION SCHEDULE
This Publication Schedule is prepared by the Office of Administrative Hearings as a public service and the computation of time periods are not to be deemed binding or controlling.
Time is computed according to 26 NCAC 2C .0302 and the Rules of Civil Procedure, Rule 6.
GENERAL
The North Carolina Register shall be published twice
a month and contains the following information
submitted for publication by a state agency:
(1) temporary rules;
(2) notices of rule-making proceedings;
(3) text of proposed rules;
(4) text of permanent rules approved by the Rules
Review Commission;
(5) notices of receipt of a petition for municipal
incorporation, as required by G.S. 120-165;
(6) Executive Orders of the Governor;
(7) final decision letters from the U.S. Attorney
General concerning changes in laws affecting
voting in a jurisdiction subject of Section 5 of
the Voting Rights Act of 1965, as required by
G.S. 120-30.9H;
(8) orders of the Tax Review Board issued under
G.S. 105-241.2; and
(9) other information the Codifier of Rules
determines to be helpful to the public.
COMPUTING TIME: In computing time in the
schedule, the day of publication of the North Carolina
Register is not included. The last day of the period so
computed is included, unless it is a Saturday, Sunday,
or State holiday, in which event the period runs until
the preceding day which is not a Saturday, Sunday, or
State holiday.
FILING DEADLINES
ISSUE DATE: The Register is published on the first
and fifteen of each month if the first or fifteenth of
the month is not a Saturday, Sunday, or State holiday
for employees mandated by the State Personnel
Commission. If the first or fifteenth of any month is
a Saturday, Sunday, or a holiday for State employees,
the North Carolina Register issue for that day will be
published on the day of that month after the first or
fifteenth that is not a Saturday, Sunday, or holiday for
State employees.
LAST DAY FOR FILING: The last day for filing for any
issue is 15 days before the issue date excluding
Saturdays, Sundays, and holidays for State
employees.
NOTICE OF TEXT
EARLIEST DATE FOR PUBLIC HEARING: The hearing
date shall be at least 15 days after the date a notice of
the hearing is published.
END OF REQUIRED COMMENT PERIOD
An agency shall accept comments on the text of a
proposed rule for at least 60 days after the text is
published or until the date of any public hearings held
on the proposed rule, whichever is longer.
DEADLINE TO SUBMIT TO THE RULES REVIEW
COMMISSION: The Commission shall review a rule
submitted to it on or before the twentieth of a month
by the last day of the next month.
FIRST LEGISLATIVE DAY OF THE NEXT REGULAR
SESSION OF THE GENERAL ASSEMBLY: This date is
the first legislative day of the next regular session of
the General Assembly following approval of the rule
by the Rules Review Commission. See G.S. 150B-
21.3, Effective date of rules.
EXECUTIVE ORDERS
22:17 NORTH CAROLINA REGISTER MARCH 3, 2008
1491
IN ADDITION
22:17 NORTH CAROLINA REGISTER MARCH 3, 2008
1492
Note from the Codifier: This Section contains public notices that are required to be published in the Register or have been approved
by the Codifier of Rules for publication.
IN ADDITION
22:17 NORTH CAROLINA REGISTER MARCH 3, 2008
1493
SUMMARY OF NOTICE OF
INTENT TO REDEVELOP A BROWNFIELDS PROPERTY
Tremont Partners, LP
Pursuant to N.C.G.S. 130A-310.34, Tremont Partners, LP has filed with the North Carolina Department of Environment and
Natural Resources ("DENR") a Notice of Intent to Redevelop a Brownfields Property ("Property") in Charlotte, Mecklenburg County,
North Carolina. The Property, where Ferguson Enterprises, Inc. currently operates a warehouse and showroom, consists of
approximately 2.88 acres and is located at 101 West Tremont Avenue. Environmental contamination exists on the Property in
groundwater. Tremont Partners, LP has committed itself to effect redevelopment of the Property that will consist of a multi-story
building containing luxury residential units with amenities, as well as retail, office and other commercial uses, and a parking structure.
The Notice of Intent to Redevelop a Brownfields Property includes: (1) a proposed Brownfields Agreement between DENR and
Tremont Partners, LP, which in turn includes (a) a map showing the location of the Property, (b) a description of the contaminants
involved and their concentrations in the media of the Property, (c) the above-stated description of the intended future use of the
Property, and (d) proposed investigation and remediation; and (2) a proposed Notice of Brownfields Property prepared in accordance
with G.S. 130A-310.35.
The full Notice of Intent to Redevelop a Brownfields Property may be reviewed at the Public Library of Charlotte &
Mecklenburg County, 310 N. Tryon St., Charlotte, NC 28202 by contacting Allison Aiken at that address or at (704) 336-2725; or at
NC Brownfields Program, 401 Oberlin Rd., Suite 150, Raleigh, NC 27605 by contacting Shirley Liggins at that address, at
shirley.liggins@ncmail.net, or at (919) 508-8411, where DENR will provide auxiliary aids and services for persons with disabilities
who wish to review the documents.
Written public comments may be submitted to DENR within 30 days after the date this Notice is published in a newspaper of
general circulation serving the area in which the Property is located, or in the North Carolina Register, whichever is later. Written
requests for a public meeting may be submitted to DENR within 21 days after the period for written public comments begins. Thus, if
Tremont Partners, LP, as it plans, publishes this Summary in the North Carolina Register after it publishes the Summary in a
newspaper of general circulation serving the area in which the Property is located, and if it effects publication of this Summary in the
North Carolina Register on the date it expects to do so, the periods for submitting written requests for a public meeting regarding this
project and for submitting written public comments will commence on March 4, 2008. All such comments and requests should be
addressed as follows:
Mr. Bruce Nicholson
Brownfields Program Manager
Division of Waste Management
NC Department of Environment and Natural Resources
401 Oberlin Road, Suite 150
Raleigh, North Carolina 27605
IN ADDITION
22:17 NORTH CAROLINA REGISTER MARCH 3, 2008
1494
Notice of Application for Innovative Approval of a Wastewater System for On-site Subsurface Use
Pursuant to NCGS 130A-343(g), the North Carolina Department of Environment and Natural Resources (DENR) shall publish a
Notice in the NC Register that a manufacturer has submitted a request for approval of a wastewater system, component, or device for
on-site subsurface use. The following applications have been submitted to DENR:
Application by: Dick Bachelder
PSA Inc/ADS Inc
PO Box 3000
Hilliard, OH 43026
For: Revised Innovative Approval for "BioDiffuser" chambered subsurface wastewater system
DENR Contact: Ted Lyon
1-919-715-3274
Fax: 919-715-3227
ted.lyon@ncmail.net
These applications may be reviewed by contacting the applicant or at 2728 Capital Blvd., Raleigh, NC, On-Site Water Protection
Section, Division of Environmental Health. Draft proposed innovative approvals and proposed final action on the application by
DENR can be viewed on the On-Site Water Protection Section web site: http://www.deh.enr.state.nc.us/osww_new/new1//index.htm.
Written public comments may be submitted to DENR within 30 days of the date of the Notice publication in the North Carolina
Register. All written comments should be submitted to Mr. Ted Lyon, Chief, On-site Water Protection Section, 1642 Mail Service
Center, Raleigh, NC 27699-1642, or ted.lyon@ncmail.net, or fax 919.715.3227. Written comments received by DENR in accordance
with this Notice will be taken into consideration before a final agency decision is made on the innovative subsurface wastewater
system application.
IN ADDITION
22:17 NORTH CAROLINA REGISTER MARCH 3, 2008
1495
NOTICE OF CHANGE OF LOCATION FOR PUBLIC HEARING
The Gasoline and Oil Inspection Board published a Notice of Text of proposed rules pertaining to motor fuel standards, 02 NCAC 42,
in the 22:14 North Carolina Register. The location of the public hearing has been changed to the Governor James G. Martin Building,
North Carolina State Fairgrounds, 1025 Blue Ridge Blvd., Raleigh, NC. The time and date of the public hearing will still be at 10:00
on March 18, 2008.
PROPOSED RULES
22:17 NORTH CAROLINA REGISTER MARCH 3, 2008
1496
Note from the Codifier: The notices published in this Section of the NC Register include the text of proposed rules. The agency
must accept comments on the proposed rule(s) for at least 60 days from the publication date, or until the public hearing, or a
later date if specified in the notice by the agency. If the agency adopts a rule that differs substantially from a prior published
notice, the agency must publish the text of the proposed different rule and accept comment on the proposed different rule for 60
days.
Statutory reference: G.S. 150B-21.2.
TITLE 02 – DEPARTMENT OF AGRICULTURE AND
CONSUMER SERVICES
Notice is hereby given in accordance with G.S. 150B-21.2 that
the North Carolina Pesticide Board intends to adopt the rules
cited as 02 NCAC 09L .2201 - .2203.
Proposed Effective Date: July 1, 2008
Instructions on How to Demand a Public Hearing: (must be
requested in writing within 15 days of notice): Any person may
request a public hearing on the proposed rules by submitting a
request in writing no later than March 18, 2008, to James W.
Burnette, Jr., Secretary, NC Pesticide Board, 1090 Mail Service
Center, Raleigh, NC 27699-1090.
Reason for Proposed Action: The North Carolina Pesticide
Board is proposing these rules to protect the North Carolina
Heelsplitter Mussel, a federally endangered species occurring in
Union County, NC. The rules identify pesticides needing
additional use limitations to provide additional protections and
establish setback areas near streams where these pesticides
cannot be used.
Procedure by which a person can object to the agency on a
proposed rule: Any person may object to the proposed rules by
submitting a written statement of objection(s) to James W.
Burnette, Jr., Secretary, NC Pesticide Board, 1090 Mail Service
Center, Raleigh, NC 27699-1090.
Comments may be submitted to: James W. Burnette, Jr., 1090
Mail Service Center, Raleigh, NC 27699-1090, phone (919)
733-3556, fax (919) 733-9796, email james.burnette@ncmail.net
Comment period ends: May 2, 2008
Procedure for Subjecting a Proposed Rule to Legislative
Review: If an objection is not resolved prior to the adoption of
the rule, a person may also submit written objections to the
Rules Review Commission. If the Rules Review Commission
receives written and signed objections in accordance with G.S.
150B-21.3(b2) from 10 or more persons clearly requesting
review by the legislature and the Rules Review Commission
approves the rule, the rule will become effective as provided in
G.S. 150B-21.3(b1). The Commission will receive written
objections until 5:00 p.m. on the day following the day the
Commission approves the rule. The Commission will receive
those objections by mail, delivery service, hand delivery, or
facsimile transmission. If you have any further questions
concerning the submission of objections to the Commission,
please call a Commission staff attorney at 919-733-2721.
Fiscal Impact:
State
Local
Substantive (>$3,000,000)
None
CHAPTER 09 - FOOD AND DRUG PROTECTION
DIVISION
SUBCHAPTER 09L - PESTICIDE SECTION
SECTION .2200 - INTERIM PROTECTION MEASURES
FOR THE CAROLINA HEELSPLITTER MUSSEL
02 NCAC 09L .2201 DEFINITIONS
All specific words or terms used in this Section other than those
defined in this Rule shall have the same definitions as shown in
the North Carolina Pesticide Law of 1971, G.S. 143-460.
"Pesticide use limitation areas" means areas where the use of a
specific pesticide is further regulated in order to protect and
promote the recovery of federally listed endangered or
threatened animal or plant species that are in danger of
becoming extinct.
Authority G.S. 143-458; 143-466(a).
02 NCAC 09L .2202 PESTICIDE USE LIMITATION
AREAS
The table in 02 NCAC 09L .2203 contains pesticide active
ingredients that have specific limitations on pesticide use in
order to protect the federally listed endangered species Carolina
heelsplitter (Lasmigona decorata) in Union County, NC, in the
vicinity of:
(1) the main stem of Goose Creek from the NC
Highway 218 bridge, downstream to its
confluence with the Rocky River;
(2) the main stem of Duck Creek, from the
Mecklenburg/Union County line, downstream
to its confluence with Goose Creek; and
(3) the main stem of Waxhaw Creek, from NC
Highway 200 bridge, downstream to the North
Carolina/South Carolina State line.
Authority G.S. 143-458; 143-466(a).
PROPOSED RULES
22:17 NORTH CAROLINA REGISTER MARCH 3, 2008
1497
02 NCAC 09L .2203 PESTICIDES WITH
ADDITIONAL USE LIMITATIONS
The application of any of the following pesticides in the vicinity
of the areas identified in 02 NCAC 09L .2202 must not occur
within the pesticide use limitation areas identified by the codes
in the following table:
Pesticide Active Ingredient Code
Azinphos-methyl 2x
Benomyl 1x
Captan 1x
Carbaryl 2x
Carbofuran 1x
Chlorpyrifos 3z
Diazinon 2x
Dicofol 2x
Dimethoate 2x
Endosulfan 2x
Esfenvalerate 1x
Ethion 2x
Ethoprop 1x
Fenamiphos 2x
Fonofos 2x
Malathion 2x
Methidathion 2x
Methomyl 1x
Mevinphos 2x
Naled 1x
Parathion (ethyl) 2x
Pendimethalin 2x
Permethrin 1x
Phorate 1x
Phosmet 1x
Phosphamidon 1x
Propiconazole 1x
Pyrethrins 2x
Terbufos 2x
Trichlorfon 2x
Code/Limitations:
(1) 1x - Within the area described in 02 NCAC
09L .2202 and one-half mile up all streams
that join the area, do not apply this pesticide
within 20 yards from the edge of water for
ground applications and within 100 yards for
aerial applications;
(2) 2x - Within the area described in 02 NCAC
09L .2202 and one-half mile up all streams
that join the area, do not apply this pesticide
within 40 yards from the edge of water for
ground applications and within 200 yards for
aerial applications;
(3) 3z - Within the area described in 02 NCAC
09L .2202, do not apply this pesticide within
100 yards from the edge of water for ground
applications and within one-fourth mile for
aerial applications.
Authority G.S. 143-458; 143-466(a).
TITLE 21 – OCCUPATIONAL LICENSING BOARDS AND
COMMISSIONS
CHAPTER 30 - NC BOARD OF MASSAGE AND
BODYWORK THERAPY
Notice is hereby given in accordance with G.S. 150B-21.2 that
the North Carolina Board of Massage and Bodywork Therapy
intends to adopt the rule cited as 21 NCAC 30 .0516 and amend
the rules cited as 21 NCAC 30 .0102, .0201.
Proposed Effective Date: August 1, 2008
Public Hearing:
Date: April 17, 2008
Time: 11:00 a.m.
Location: Wachovia Capitol Center, 13th Floor Conference
Room, 150 Fayetteville Street, Raleigh, NC 27601
Reason for Proposed Action: These amendments to existing
rules and the additional new rule are being submitted to clarify
the Massage and Bodywork Therapy Practice Act.
Procedure by which a person can object to the agency on a
proposed rule: Any person may object to any of these proposed
amendments or adoptions by submitting a written statement to
Charles P. Wilkins at PO Box 2539, Raleigh, NC 27602,
postmarked on or before June 3, 2008.
Comments may be submitted to: Charles P. Wilkins, PO Box
2539, Raleigh, NC 27602, phone (919) 833-2752, fax (919)
833-1059, email cwilkins@bws-law.com
Comment period ends: June 3, 2008
Procedure for Subjecting a Proposed Rule to Legislative
Review: If an objection is not resolved prior to the adoption of
the rule, a person may also submit written objections to the
Rules Review Commission. If the Rules Review Commission
receives written and signed objections in accordance with G.S.
150B-21.3(b2) from 10 or more persons clearly requesting
review by the legislature and the Rules Review Commission
approves the rule, the rule will become effective as provided in
G.S. 150B-21.3(b1). The Commission will receive written
objections until 5:00 p.m. on the day following the day the
Commission approves the rule. The Commission will receive
those objections by mail, delivery service, hand delivery, or
facsimile transmission. If you have any further questions
concerning the submission of objections to the Commission,
please call a Commission staff attorney at 919-733-2721.
Fiscal Impact:
State
Local
Substantive (>$3,000,000)
None
PROPOSED RULES
22:17 NORTH CAROLINA REGISTER MARCH 3, 2008
1498
SECTION .0100 - ORGANIZATION AND GENERAL
PROVISIONS
21 NCAC 30 .0102 DEFINITIONS
In addition to the definitions set forth in G.S. 90-622(1) through
(5), the following definitions apply:
(1) Classroom hours of supervised instruction. --
Student learning activities in a training
program that is conducted in the physical
presence of an instructor who meets the
qualifications of Rule .0612 of this Chapter.
(2) Generally recognized psychometric principles
and standards. -- Standards for Educational
and Psychological Testing (1999, American
Psychological Association, American
Educational Research Association, National
Council on Measurement in Education),
Principles of Fairness: An Examining Guide
for Credentialing Boards (Revised 2002,
Council on Licensure, Enforcement, and
Regulation, National Organization for
Competency Assurance) which is hereby
incorporated by reference, including
subsequent amendments and editions. Copies
of the standards may be obtained from The
American Psychological Association at 750
First Street, NE, Washington, DC 20002-4242
or online at
http://www.apa.org/science/standards.html.
(1)(8) Practice Act. -- Article 36, Chapter 90 of the
North Carolina General Statutes: The North
Carolina Massage and Bodywork Therapy
Practice Act.
(2)(5) Licensee. -- A person who holds a valid
license issued by the Board to engage in the
practice of massage and bodywork therapy.
(3)(9) Reciprocity. -- Pursuant to G.S. 90-630, a
provision which shall apply to practitioners of
massage and bodywork therapy qualified
pursuant to Rule .0304 who reside outside the
State.
(4)(7) Place of business. -- The primary street
location where the licensee provides massage
and bodywork therapy. If the licensee provides
massage and bodywork therapy only at the
location of clients, then it shall be the
residence street address of the licensee.
(5)(6) Malpractice. -- Conduct in variance with the
Standards of Practice set forth in Section .0500
that results in harm to a client or that
endangers the health or safety of a client.
(6)(3) Gross negligence. -- The intentional failure to
perform a manifest duty in reckless disregard
of the consequences as affecting the life or
property of another.
(7)(4) Incompetency. -- Conduct that evidences a
lack of ability, fitness or knowledge to apply
principles or skills of the profession of
massage and bodywork therapy.
(8)(10) Therapeutic, educational, or relaxation
purposes. -- Pursuant to G.S. 90-622(3), that
which is intended to positively affect the
health and well-being of the client, and that
does not include sexual activity, as defined in
Rule .0508.
Authority G.S. 90-622; 90-626(9).
SECTION .0200 - APPLICATION FOR LICENSE
21 NCAC 30 .0201 APPLICATION AND SCOPE
Each applicant for a license as a massage and bodywork
therapist shall complete an application form provided by the
Board. This form shall be submitted to the Board and shall be
accompanied by:
(1) Recent original photograph(s)One original
color photograph of the applicant taken within
six months preceding the date of the
application of acceptablesufficient quality for
identification. SuchThe photograph shall be of
the head and shoulders, passport type, two
inches by two inches in size;
(2) The proper fees, as required by Rule .0204 of
this Section;
(3) Documentation that the applicant has earned a
high school diploma or equivalent;
(4) Documentation that the applicant is 18 years
of age or older;
(5) Documentation that the applicant has
successfully completed a course of study at a
Board-approved school consisting of a
minimum of 500 classroom hours of
supervised instruction. If the applicant
attended a school which is not
Board-approved, the Board may elect to
review that applicant's educational credentials
for approval on a case-by-case basis. At a
minimum, theThe documentation of such
training must come from a school which is
licensed by the educational licensing authority
in the state, territory or country in which it
operates, or is exempt by statute. In North
Carolina the documentation must come from a
proprietary school approved by the Board or a
community college program. The curriculum
must meet or be substantially equivalent to the
standards set forth in Rule .0602(a)(3)
.0620(2) of this Chapter;
(6) Documentation that the applicant has
successfully passedachieved a passing score
on an examination administered by a certifying
agency that has been approved by the National
Commission of Certifying Agencies
(NCCA)Agencies, and documentation that the
applicant is a certificant and is in good
standing with such agencyagency; or has
achieved a passing score on a competency
assessment examination administered by the
PROPOSED RULES
22:17 NORTH CAROLINA REGISTER MARCH 3, 2008
1499
Board or approved by the Board as meeting
generally recognized psychometric principles
and standards; and
(7) A form provided by the Board containing
signed statements from two licensed massage
and bodywork therapists, or other licensed
health care practitioners, attesting to the
applicant's good moral character and
adherence to ethical standards.
Authority G.S. 90-626(2); 90-629.
SECTION .0500 - STANDARDS OF PROFESSIONAL
CONDUCT
21 NCAC 30 .0516 TREATMENT IN BODY
CAVITIES
A licensed massage and bodywork therapist (LMBT) may
perform massage and bodywork therapy inside the vaginal or
anal cavities of a client provided the LMBT complies with the
following requirements prior to the massage or bodywork
therapy:
(1) the LMBT obtains written and signed consent
from the client for treatment inside the client's
vaginal or anal cavities stating that the client
has been advised that the client has the right to
have another person, provided either by the
client or therapist, present in the room while
the treatment is being performed and
indicating whether the client chooses treatment
with a third person present or treatment with
only the therapist and the client present;
(2) the massage and bodywork therapy treatment
is performed in conformance with Rule .0509
of this Chapter;
(3) the LMBT is competent to perform massage
and bodywork therapy inside the vaginal or
anal cavities of the client; and
(4) a written prescription or order has been
received from a licensed medical doctor
prescribing or ordering the specific massage
and bodywork therapy treatment.
Authority G.S. 90-626(9).
* * * * * * * * * * * * * * * * * * * *
CHAPTER 64 - BOARD OF EXAMINERS OF SPEECH
AND LANGUAGE PATHOLOGISTS AND
AUDIOLOGISTS
Notice is hereby given in accordance with G.S. 150B-21.2 that
the NC Board of Examiners for Speech and Language
Pathologists and Audiologists intends to adopt the rule cited as
21 NCAC 64 .0218.
Proposed Effective Date: August 1, 2008
Public Hearing:
Date: April 18, 2008
Time: 10 a.m.
Location: 3100 Tower Blvd., Suite 522m, Durham, NC
Reason for Proposed Action: To provide rule for continuing
education pursuant to statutory amendment effective October 1,
2007.
Procedure by which a person can object to the agency on a
proposed rule: Appear at the hearing on April 18, 2008.
Comments may be submitted to: John C. Randall, 3100
Tower Blvd., Durham, NC 27707
Comment period ends: April 18, 2008
Procedure for Subjecting a Proposed Rule to Legislative
Review: If an objection is not resolved prior to the adoption of
the rule, a person may also submit written objections to the
Rules Review Commission. If the Rules Review Commission
receives written and signed objections in accordance with G.S.
150B-21.3(b2) from 10 or more persons clearly requesting
review by the legislature and the Rules Review Commission
approves the rule, the rule will become effective as provided in
G.S. 150B-21.3(b1). The Commission will receive written
objections until 5:00 p.m. on the day following the day the
Commission approves the rule. The Commission will receive
those objections by mail, delivery service, hand delivery, or
facsimile transmission. If you have any further questions
concerning the submission of objections to the Commission,
please call a Commission staff attorney at 919-733-2721.
Fiscal Impact:
State
Local
Substantive (>$3,000,000)
None
SECTION .0200 - INTERPRETATIVE RULES
21 NCAC 64 .0218 CONTINUIING EDUCATION
The Board requires that beginning January 1, 2009 each licensee
must complete annually 10 hours of continuing professional
education as approved by the Board.
Authority G.S. 90-304(a)(3).
APPROVED RULES
22:17 NORTH CAROLINA REGISTER MARCH 3, 2008
1500
This Section includes a listing of rules approved by the Rules Review Commission followed by the full text of those rules. The
rules that have been approved by the RRC in a form different from that originally noticed in the Register or when no notice was
required to be published in the Register are identified by an * in the listing of approved rules. Statutory Reference: G.S. 150B-
21.17.
Rules approved by the Rules Review Commission at its meeting on January 17, 2008
REGISTER CITATION TO THE
NOTICE OF TEXT
SOCIAL SERVICES COMMISSION
Planning Program Activities 10A NCAC 06R .0501* 22:08 NCR
Nutrition 10A NCAC 06R .0502* 22:08 NCR
Transportation 10A NCAC 06R .0503 22:08 NCR
Records 10A NCAC 06R .0508* 22:08 NCR
HEALTH SERVICE REGULATION, DIVISION OF
Definitions 10A NCAC 14C .2301* 22:08 NCR
Information Required of Applicant 10A NCAC 14C .2302* 22:08 NCR
Performance Standards 10A NCAC 14C .2303* 22:08 NCR
Support Services 10A NCAC 14C .2304 22:08 NCR
Staffing and Staff Training 10A NCAC 14C .2305* 22:08 NCR
PUBLIC HEALTH, COMMISSION FOR
Authorized WIC Vendors 10A NCAC 43D .0706* n/a G.S. 150B-21.5(a)(3)
INSURANCE, DEPARTMENT OF
Definitions 11 NCAC 06A .0101 22:08 NCR
N.C. Non-Resident Broker's Insurance Bond 11 NCAC 06A .0211 22:08 NCR
North Carolina Notice of Cancellation 11 NCAC 06A .0217 22:08 NCR
Responsibility of Applicant at Examination Site 11 NCAC 06A .0304* 22:08 NCR
Licensing of Resident Agent, LTD, Representative
and Adju...
11 NCAC 06A .0402* 22:08 NCR
Licensing and Broker 11 NCAC 06A .0404* 22:08 NCR
Licensing of Nonresident Broker 11 NCAC 06A .0405 22:08 NCR
Licensing of Motor Vehicle Damage Appraiser 11 NCAC 06A .0408 22:08 NCR
Adjuster's Learner's Permit 11 NCAC 06A .0414 22:08 NCR
Personal Interviews 11 NCAC 06A .0604 22:08 NCR
General Requirements 11 NCAC 06A .0701* 22:08 NCR
Prelicensing Education Schools 11 NCAC 06A .0702* 22:08 NCR
Program Directors 11 NCAC 06A .0703* 22:08 NCR
Courses 11 NCAC 06A .0704* 22:08 NCR
Instructors 11 NCAC 06A .0705* 22:08 NCR
Definitions 11 NCAC 06A .0801* 22:08 NCR
Licensee Requirements 11 NCAC 06A .0802* 22:08 NCR
Carryover Credit 11 NCAC 06A .0804 22:08 NCR
APPROVED RULES
22:17 NORTH CAROLINA REGISTER MARCH 3, 2008
1501
Calculation of ICECS 11 NCAC 06A .0805* 22:08 NCR
Hardship 11 NCAC 06A .0807* 22:08 NCR
Instructor Qualification 11 NCAC 06A .0808* 22:08 NCR
Approval of Courses 11 NCAC 06A .0809* 22:08 NCR
Sanctions for Noncompliance 11 NCAC 06A .0811* 22:08 NCR
Issuance/Continuation of Provider Approval 11 NCAC 06A .0813* 22:08 NCR
Exemptions 11 NCAC 12 .0604* 22:08 NCR
JUSTICE, DEPARTMENT OF
Application for Company Police Agency 12 NCAC 02I .0203* 22:01 NCR
Transfers 12 NCAC 02I .0305* 22:01 NCR
Badges, Uniforms, Vehicles and Officer
Identification
12 NCAC 02I .0306* 22:01 NCR
Agency Retention of Records of Commission 12 NCAC 02I .0501* 22:01 NCR
PRIVATE PROTECTIVE SERVICES BOARD
Training Video and Training Test 12 NCAC 07D .1109 22:02 NCR
ENVIRONMENT AND NATURAL RESOURCES, DEPARTMENT OF
Purpose 15A NCAC 01N .0101* 22:03 NCR
Definitions 15A NCAC 01N .0102* 22:03 NCR
Applicable Procedures 15A NCAC 01N .0103* 22:03 NCR
Availability of Loans 15A NCAC 01N .0201* 22:03 NCR
Loan Restrictions 15A NCAC 01N .0202* 22:03 NCR
Determination of Eligibility 15A NCAC 01N .0301* 22:03 NCR
Eligible Project Costs 15A NCAC 01N .0303 22:03 NCR
Filing Deadlines 15A NCAC 01N .0401* 22:03 NCR
Application Procedures 15A NCAC 01N .0402* 22:03 NCR
Project Schedule and Resolution 15A NCAC 01N .0403 22:03 NCR
Assignment of Priorities 15A NCAC 01N .0502* 22:03 NCR
General Criteria 15A NCAC 01N .0601 22:03 NCR
Public Health and Compliance 15A NCAC 01N .0602 22:03 NCR
Consolidation 15A NCAC 01N .0603 22:03 NCR
Reliability 15A NCAC 01N .0604 22:03 NCR
Affordability 15A NCAC 01N .0605 22:03 NCR
Source Protection and Management 15A NCAC 01N .0606 22:03 NCR
Determination of Awards and Bypass Procedures 15A NCAC 01N .0701* 22:03 NCR
Disbursement of Loans 15A NCAC 01N .0704* 22:03 NCR
Interest Rates 15A NCAC 01N .0801 22:03 NCR
Audit 15A NCAC 01N .0902* 22:03 NCR
MARINE FISHERIES COMMISSION
Prohibited Rakes 15A NCAC 03K .0102* 22:05 NCR
Shellfish or Seed Management 15A NCAC 03K .0103* 22:05 NCR
Prohibited Taking 15A NCAC 03K .0304 22:05 NCR
APPROVED RULES
22:17 NORTH CAROLINA REGISTER MARCH 3, 2008
1502
Bay Scallops - Seasons and Harvest Limits 15A NCAC 03K .0501 22:05 NCR
Soaked or Swelled Bay Scallops Prohibited 15A NCAC 03K .0506 22:05 NCR
Application Process 15A NCAC 03O .0402* 22:05 NCR
Eligibility Board Review 15A NCAC 03O .0403* 22:05 NCR
Eligibility Criteria 15A NCAC 03O .0404* 22:05 NCR
COASTAL RESOURCES COMMISSION
Civil Penalties 15A NCAC 07J .0409* 22:05 NCR
REVENUE, DEPARTMENT OF
Pre-Hearing Conference 17 NCAC 01C .0201* n/a G.S. 150B-1(d)(4)
Procedure of Hearing 17 NCAC 01C .0202* n/a G.S. 150B-1(d)(4)
Assistance of Counsel 17 NCAC 01C .0203* n/a G.S. 150B-1(d)(4)
Failure to Appear 17 NCAC 01C .0205* n/a G.S. 150B-1(d)(4)
Application for Hearing 17 NCAC 01C .0305* n/a G.S. 150B-1(d)(4)
Waiver of Time Limitation 17 NCAC 01C .0307* n/a G.S. 150B-1(d)(4)
Claim for Tax Refund 17 NCAC 01C .0316* n/a G.S. 150B-1(d)(4)
Tax Refund 17 NCAC 01C .0317* n/a G.S. 150B-1(d)(4)
Computation and Payment of Amusement Gross
Receipts Taxes
17 NCAC 04B .0302* n/a G.S. 150B-1(d)(4)
Overpayments Applied to Next Year 17 NCAC 05C .1904* n/a G.S. 150B-1(d)(4)
Purpose 17 NCAC 05D .0107* n/a G.S. 150B-1(d)(4)
Who May Submit Request 17 NCAC 05D .0108* n/a G.S. 150B-1(d)(4)
Request for Alternative Apportionment Formula 17 NCAC 05D .0109* n/a G.S. 150B-1(d)(4)
Time for Filing 17 NCAC 05D .0110* n/a G.S. 150B-1(d)(4)
Notice of Conference 17 NCAC 05D .0111* n/a G.S. 150B-1(d)(4)
Who Shall Attend the Conference 17 NCAC 05D .0112* n/a G.S. 150B-1(d)(4)
Conduct of the Conference 17 NCAC 05D .0113* n/a G.S. 150B-1(d)(4)
Final Decision 17 NCAC 05D .0115* n/a G.S. 150B-1(d)(4)
Additional Fire and Lightning Taxes 17 NCAC 05E .0102* n/a G.S. 150B-1(d)(4)
Group Premiums 17 NCAC 05E .0105* n/a G.S. 150B-1(d)(4)
TRANSPORTATION, DEPARTMENT OF
Prequalifying to Bid: Requalification 19A NCAC 02D .0801* 22:06 NCR
Invitation to Bid 19A NCAC 02D .0802 22:06 NCR
Advertisement and Invitations for Bids 19A NCAC 02D .0803* 22:06 NCR
Contents of Proposal Forms 19A NCAC 02D .0804 22:06 NCR
Combination Bids 19A NCAC 02D .0805 22:06 NCR
Interpretation of Quantities in Proposal Form 19A NCAC 02D .0806 22:06 NCR
Examination of Plans: Specs: Contract: and Site of
Work
19A NCAC 02D .0807* 22:06 NCR
Preparation and Submission of Bids 19A NCAC 02D .0808 22:06 NCR
Bid Bond or Bid Deposit 19A NCAC 02D .0809 22:06 NCR
Delivery of Bids 19A NCAC 02D .0810* 22:06 NCR
Withdrawal or Revision of Bids 19A NCAC 02D .0811 22:06 NCR
Receipt and Opening of Bids 19A NCAC 02D .0812 22:06 NCR
APPROVED RULES
22:17 NORTH CAROLINA REGISTER MARCH 3, 2008
1503
Withdraw of Bids – Mistake 19A NCAC 02D .0813 22:06 NCR
Correction of Bids Errors 19A NCAC 02D .0814 22:06 NCR
Rejection of Bids 19A NCAC 02D .0815 22:06 NCR
Disqualification of Bidders 19A NCAC 02D .0816 22:06 NCR
Consideration of Bids 19A NCAC 02D .0817 22:06 NCR
Non-Collusion Affidavit and Certifications 19A NCAC 02D .0818 22:06 NCR
Award of Contract 19A NCAC 02D .0819 22:06 NCR
Return of Bid Bond or Bid Request 19A NCAC 02D .0821 22:06 NCR
Contract Bonds 19A NCAC 02D .0822 22:06 NCR
Execution of Contract 19A NCAC 02D .0823 22:06 NCR
Failure to Furnish Contract Bonds 19A NCAC 02D .0824 22:06 NCR
Confidentiality of Cost Estimates 19A NCAC 02D .0825 22:06 NCR
Subsurface Information 19A NCAC 02D .0827 22:06 NCR
Computer Bid Preparation 19A NCAC 02D .0828 22:06 NCR
Definitions 19A NCAC 02D .0830 22:06 NCR
Purpose and Scope 19A NCAC 02D .1101 22:06 NCR
Definitions 19A NCAC 02D .1102* 22:06 NCR
Certification of Firms 19A NCAC 02D .1103* 22:06 NCR
Renewal of Certification 19A NCAC 02D .1104 22:06 NCR
Change in Ownership or Control 19A NCAC 02D .1105 22:06 NCR
Decertification 19A NCAC 02D .1106* 22:06 NCR
Appeals of Denial of Certification 19A NCAC 02D .1107* 22:06 NCR
Goals 19A NCAC 02D .1108* 22:06 NCR
Counting Participation Toward Meeting the Goal 19A NCAC 02D .1109 22:06 NCR
Non-Attainment of Goals 19A NCAC 02D .1110 22:06 NCR
Performance Related Replacement of Eligible Firms 19A NCAC 02D .1111 22:06 NCR
Replacement of a Firm Removed by Decertification 19A NCAC 02D .1112 22:06 NCR
DENTAL EXAMINERS, BOARD OF
Location 21 NCAC 16A .0104 22:08 NCR
Time for Filing 21 NCAC 16B .0402 22:08 NCR
Temporary Volunteer Dental Permit 21 NCAC 16B .0801* 22:08 NCR
Time for Filing 21 NCAC 16C .0402 22:08 NCR
Applications 21 NCAC 16I .0101* 22:08 NCR
Penalty/Non-Compliance/Continuing Education
Requirement
21 NCAC 16I .0105* 22:08 NCR
Fee for Late Filing and Duplicate Licenses 21 NCAC 16I .0106 22:08 NCR
License Void Upon Failure to Renew 21 NCAC 16I .0107 22:08 NCR
Sterilization 21 NCAC 16J .0103* 22:08 NCR
General Anesthesia Credentials and Permit 21 NCAC 16Q .0201 22:08 NCR
Applications 21 NCAC 16R .0101* 22:08 NCR
Fee for Late Filing 21 NCAC 16R .0102 22:08 NCR
Penalty/Non-Compliance/Continuing Education 21 NCAC 16R .0107* 22:08 NCR
Eligibility to Practice Hygiene Outside Direct
Supervision
21 NCAC 16Z .0101* 22:08 NCR
Record Keeping 21 NCAC 16Z .0102* 22:08 NCR
Inspections 21 NCAC 16Z .0103* 22:08 NCR
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MEDICAL BOARD
Ten-Year Qualification 21 NCAC 32B .1207* 22:06 NCR
Administration of Vaccines by Pharmacists 21 NCAC 32U .0101* 22:08 NCR
PHARMACY, BOARD OF
Administration of Vaccines by Pharmacists 21 NCAC 46 .2507* 22:08 NCR
STATE PERSONNEL COMMISSION
Content and Procedure 25 NCAC 01B .0201* n/a G.S. 150B-21.5
Presentations 25 NCAC 01B .0204* n/a G.S. 150B-21.5
Requests for Declaratory Ruling 25 NCAC 01B .0213* n/a G.S. 150B-21.5
Continuances 25 NCAC 01B .0439* n/a G.S. 150B-21.5
Policy 25 NCAC 01N .0501 22:06 NCR
Administration 25 NCAC 01N .0502 22:06 NCR
Wellness Leader 25 NCAC 01N .0503 22:06 NCR
Wellness Committees 25 NCAC 01N .0504 22:06 NCR
TITLE 10A – DEPARTMENT OF HEALTH AND HUMAN
SERVICES
10A NCAC 06R .0501 PLANNING PROGRAM
ACTIVITIES
(a) Enrollment Policies and Procedures
(1) Each adult program shall have enrollment
policies. Enrollment policies shall be in
writing as a part of the program policies and
shall define the population served. These
policies serve as the basis for determining who
shall be accepted into the program and for
planning activities appropriate for the
participants. The policies shall be specific to
prevent enrolling people whose needs cannot
be met by the planned activities and shall
provide for discharge of participants whose
needs can no longer be met or who can no
longer be cared for safely. If a day care
program serves semi-ambulatory or
non-ambulatory persons, it shall be so stated in
the admissions criteria.
(2) Prior to enrollment, the applicant, family
members or other caregiver shall have a
minimum of one personal interview with a
minimum of one program staff member.
During the interview, the staff shall complete
initial documentation identifying social and
medical care needs, any designated spiritual,
religious or cultural needs, and a determination
of whether the program can meet the
individual's expressed needs. The staff person
doing the interviewing shall sign the
determination of needs and the applicant,
family member or other caregiver shall sign
the application for enrollment. These signed
documents shall be obtained before the
individual's first day of attendance as a
participant in the program.
(3) A medical examination report signed by a
physician, nurse practitioner or physician's
assistant, completed within the prior three
months, shall be obtained by the program
within 30 days of enrollment. This report
must be updated annually no later than the
anniversary date of the initial report.
(4) At enrollment, or in the initial interview, the
program policies shall be discussed with the
applicant, family member or other caregiver
and a copy of the program policies shall be
provided.
(5) Documentation of receipt of and agreement to
abide by the program policies by the applicant,
family member or other caregiver shall be
obtained by the program and kept in the
participant's file.
(6) The program policies shall contain:
(A) a discharge policy outlining the
criteria for discharge and notification
procedures for discharge, the
timeframe and procedures for
notifying the applicant, family
member or other caregiver of
discharge, and referral or follow-up
procedures;
(B) a medication policy as specified in
Rule .0505 of this Section;
(C) a description of participant's rights;
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(D) grievance policies and procedures for
families;
(E) advance directives policy;
(F) non-discrimination policies;
(G) procedure to maintain confidentiality;
(H) policy on reporting suspected abuse
or neglect;
(I) description of the geographical area
served by the program; and
(J) inclement weather policies.
(b) Planning Services for Individual Participants
(1) Within 30 days of enrollment of a new
participant, the program shall perform a
comprehensive assessment and written service
plan for each individual. The assessment shall
address the individual's ability to perform
activities of daily living and instrumental
activities of daily living while in the program.
The mental, social, living environment,
economic and physical health status of the
individual shall also be assessed. The service
plan shall be signed and dated by the program
director or the director's designee. For adult
day health participants the health component
of the service plan shall be written and signed
by a registered nurse.
(2) In developing the written service plan, the
program shall include input from the
participant, family members, or other
caregiver and other agency professionals with
knowledge of the individual's needs. The
service plan shall be based on strengths, needs
and abilities identified in the assessment. The
assessment and service plan shall be reviewed
at regular intervals, and no less than once
every six months. The service plan shall
include:
(A) the needs and strengths of the
participant;
(B) the interests of the participant;
(C) the measurable service goals and
objectives of care for the participant
while in the day care program;
(D) the type of interventions to be
provided by the program in order to
reach desired outcomes;
(E) the services to be provided by the
program to achieve the goals and
objectives;
(F) the roles of participant, family,
caregiver, volunteers and program
staff; and
(G) the time limit for the plan, with
provision for review and renewal.
(3) Progress notes in the participant's record shall
be updated at least every three months.
(4) The participant, caregiver, and other service
providers may contribute to the development,
implementation and evaluation of the service
plan.
(5) Any unusual behavior, change in mood,
change in attitude or need for help or services
shall be reported by the program. If the
participant is a social services client, the report
shall be made to the participant's family,
caregiver, or responsible party and the
department of social services worker or the
social worker designated as consultant to the
day care program by the department. If the
participant is not a social services client, the
report shall be made to the person's family,
caregiver or responsible party. A note shall be
made in the participant's record of action
taken.
(6) The participant or the responsible party may
choose the days and number of days the
participant will attend, with the program
director's approval.
(7) The reason for any unscheduled participant
absence shall be determined by the program
staff and documented on the day it occurs.
The program shall attempt to contact the
absent participant or the responsible party.
(8) The adult day care program is responsible for
the participant when a participant is registered
in attendance. A participant leaving the
program for part of a day shall sign out
relieving the staff of further responsibility. If
a participant has emotional or mental
impairment which requires supervision and
that person needs or wants to leave the
program during the day, the social worker,
family, caregiver, friend, or responsible party
shall sign the person out.
(c) Program Activities Plan
(1) The day care center or home shall have a
program activities plan which meets the
following criteria:
(A) Overall planning of activities are
based on elements of the individual
service plans.
(B) The primary program mode is the
group process, both large and small
groups, with provision for individual
activities and services as needed.
(C) Activities are adaptable and
modifiable to allow for greater
participation and to maintain
participant's individual skill level.
(D) Activities are consistent with the
stated program goals.
(E) Activities are planned jointly by staff
and participants. Staff shall
encourage participants to participate
in the planning and operation of the
program as much as they are able,
and to use their skills, talent and
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knowledge in program planning and
operation.
(F) All program activities are supervised
by program staff.
(G) Participants may refuse to participate
in any given activity.
(2) The activities schedule shall provide for the
inclusion of cognitive activities to be available
on a daily basis, and be designed to:
(A) stimulate thinking and creativity;
(B) provide opportunities for learning
new ideas and skills;
(C) help maintain existing reasoning
skills and knowledge base; and
(D) provide opportunities to utilize
previously learned skills.
(3) The activities schedule shall provide for the
inclusion of physical activities to be available
on a daily basis, and be designed to:
(A) improve or maintain mobility and
overall strength; and
(B) increase or maintain joint range of
motion.
(4) The activities schedule shall provide for the
inclusion of psychosocial activities to be
available on a daily basis, and be designed to:
(A) provide opportunities for social
interaction;
(B) develop a sense of belonging;
(C) promote goal-oriented use of time;
(D) create feelings of accomplishment;
(E) foster dignity and self-esteem;
(F) prompt self-expression; and
(G) provide fun and enjoyment.
(5) The activities schedule shall:
(A) be in writing, specifying the name of
each activity to be provided, the days
of the week each activity shall be
conducted, and the approximate
length of time of each activity;
(B) indicate the length of time the
schedule is to be followed; and
(C) be posted weekly or monthly in a
prominent place in the facility.
History Note: Authority G.S. 131D-6; 143B-153;
Eff. July 1, 1978;
Amended Eff. February 1, 2008; July 1, 2007; July 1, 1990;
January 1, 1981.
10A NCAC 06R .0502 NUTRITION
(a) An adult day program shall provide a midday meal to each
participant in attendance. The meal shall provide at least
one-third of an adult's daily nutritional requirement as specified
by the United States Department of Agriculture, Dietary
Guidelines for Americans, which are incorporated by reference,
including any subsequent amendments or additions to these
guidelines. These guidelines may be viewed and downloaded
from the Internet at http://www.health.gov/dietaryguidelines/. A
licensed dietician/nutritionist shall approve the menu.
(b) An adult day program shall offer snacks and fluids to meet
the participant's nutritional and fluid needs. The adult day
program shall offer a mid-morning and mid-afternoon snack
daily to participants. Snacks shall be planned to keep sugar, salt
and cholesterol intake to a minimum.
(c) An adult day program shall provide a therapeutic diet, if
prescribed in writing by a physician, physician's assistant or
nurse practitioner for any participant. If therapeutic diets are
prepared by program staff, such staff shall have training in
planning and preparing therapeutic diets or shall provide
documentation of previous training and education sufficient to
assure ability to prepare meals in accordance with a physician's
prescription.
(d) A licensed dietician/nutritionist shall give consultation to the
staff on basic and special nutritional needs and proper food
handling techniques and the prevention of foodborne illness.
(e) An adult day care program shall neither admit nor continue
to serve a participant whose dietary requirements cannot be
accommodated by the program.
(f) An adult day program shall store, prepare and serve meals in
a sanitary manner using safe food handling techniques such as
those recommended by the United States Department of
Agriculture, at the following website:
(http://www.fsis.usda.gov/Fact_Sheets/Safe_Food_Handling_Fa
ct_Sheets/index.asp). The food service provider shall abide by
the food safety and sanitation practices required by the
Commission for Public Health rules applying to adult day care
facilities, including any subsequent amendments or additions,
which are incorporated by reference. Copies of the rules may be
found at the following website:
(http://www.deh.enr.state.nc.us/ehs/images/rules/t15a-
18a.33.pdf).
History Note: Authority G.S. 131D-6; 143B-153;
Eff. July 1, 1978;
Amended Eff. February 1, 2008; July 1, 2007; March 1, 1992;
October 1, 1981; January 1, 1981.
10A NCAC 06R .0503 TRANSPORTATION
(a) For programs providing or arranging for public
transportation, the adult day care program shall have a
transportation policy that includes routine and emergency
procedures. Accidents, medical emergencies, weather
emergencies and escort issues shall be addressed.
(b) When the adult day care program provides transportation,
the following requirements shall be met to ensure the health and
safety of the participants:
(1) Each person transported shall have a seat in
the vehicle.
(2) Participants shall be transported no more than
30 minutes without being offered the
opportunity to have a rest stop.
(3) Vehicles used to transport participants shall be
equipped with seatbelts. Participants shall be
instructed to use seatbelts while being
transported.
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(4) Vehicles shall be equipped with a first aid kit,
consisting of the items listed in 10A NCAC
06S .0301(a), and a fire extinguisher.
(5) A copy of the transportation policy shall be
located in the vehicle used for transport.
History Note: Authority G.S. 131D-6; 143B-153;
Eff. July 1, 1978;
Amended Eff. January 1, 1981;
Temporary Amendment Eff. October 1, 2001;
Amended Eff. February 1, 2008; July 1, 2007; August 1, 2002.
10A NCAC 06R .0508 RECORDS
(a) Individual Participant Records. Each adult day care program
shall maintain records to document the progress of each
participant and to document program operation. These records
shall be kept in a locked file. An individual folder for each
participant shall be established and maintained and include the
following:
(1) a signed application recording:
(A) participant's full name;
(B) address and telephone number;
(C) date of birth, marital status and living
arrangement of participant;
(D) time of day participant will arrive and
time of day participant will leave the
program;
(E) travel arrangements to and from the
program for the participant;
(F) name, address and telephone number
of at least two family members or
friends who are responsible for the
participant and can be contacted in
emergencies;
(G) name, address and telephone number
of a licensed medical service provider
who will see the participant on
request; and
(H) personal concerns and knowledge of
the caregiver that may have an impact
on the participant's care plan.
(2) copies of all current and former signed
authorizations for the day care program to
receive and give out confidential information
on the participant. The current authorization
shall include the name of the party from whom
information is requested and to whom
information is given. The current
authorization shall be dated within the prior 12
months and obtained each time a request for
participant information is made.
(3) a signed authorization for the participant to
receive emergency medical care from any
licensed medical practitioner, if emergency
care is needed by the participant;
(4) a medical examination report conducted within
three months before enrollment and updated
annually, signed by a licensed physician,
physician's assistant or nurse practitioner. The
report shall include information on:
(A) current diseases and chronic
conditions and the degree to which
these diseases and conditions require
observation by day care staff, and
restriction of normal activities by the
participant;
(B) presence and degree of psychiatric
problems;
(C) amount of direct supervision the
participant requires;
(D) any limitations on physical activities;
(E) listing of all medications with
dosages and times medications are to
be administered; and
(F) most recent date participant was seen
by doctor.
(5) assessment forms as identified in Rule
.0501(a)(2) and (b)(1) and (b)(2) of this
Section.
(6) progress notes which are the written report of
staff discussions, conferences, consultation
with family or other interested parties,
evaluation of a participant's progress and any
other information regarding a participant's
situation.
(7) service plans for the participant, including
scheduled days of attendance, for the
preceding 12 months.
(8) a signed authorization if the participant or his
responsible party will permit photographs,
video, audio recordings or slides of the
participant to be made by the day care
program, whether for medical documentation,
publicity, or any other purpose. The
authorization shall specify how and where
such photographs, videos, audio recordings or
slides will be used, and shall be obtained prior
to taking any photographs, videos, audio
recordings or slides of the participant.
(9) a statement signed by the participant, a family
member or other responsible party (when
applicable) acknowledging receipt of the
program policies and agreeing to uphold
program policies pertaining to the participant.
(b) The adult day program shall keep the following program
records a minimum of six years:
(1) copies of activity schedules;
(2) monthly records of expenses and income,
including fees collected, and fees to be
collected;
(3) all bills, receipts and other information which
document expenses and income;
(4) a daily record of attendance of participants by
name;
(5) accident reports;
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(6) a record of staff absences, annual leave and
sick leave, including dates and names of
substitutes;
(7) reports on emergency and fire drills;
(8) individual personnel records on all staff
members including:
(A) application for employment;
(B) evidence of a state criminal history
check on each employee providing
direct care;
(C) job description;
(D) medical certification of absence of a
health condition that would pose a
risk to others;
(E) written note or report on any
personnel action taken with the
employee;
(F) written report of annual employee
review;
(G) CPR and first aid training
documentation; and
(H) signed statement to keep all
participant information confidential.
(9) a copy of all written policies, including:
(A) program policies;
(B) personnel policies;
(C) agreements or contracts with other
agencies or individuals;
(D) plan for emergencies; and
(E) evacuation plan;
(10) program evaluation reports; and
(11) control file of DSS-5027 (SIS Client Entry
Form) for all participants for whom Social
Services Block Grant (Title XX)
reimbursement is claimed.
History Note: Authority G.S. 131D-6; 143B-153;
Eff. July 1, 1978;
Amended Eff. February 1, 2008; July 1, 2007; March 1, 1992;
July 1, 1990; January 1, 1981.
* * * * * * * * * * * * * * * * * * * *
10A NCAC 14C .2301 DEFINITIONS
The following definitions shall apply to all rules in this Section:
(1) "Approved computed tomography (CT)
scanner" means a CT scanner which was not
operational prior to the beginning of the
review period but which had been issued a
certificate of need.
(2) "Computed tomography" means a technique
whereby a sharply collimated X-ray beam is
passed through the human body from a source
which rotates around the body in a specific
arc. As the beam passes through the body
from its perimeter, its intensity is reduced.
The transmitted intensity of the beam varies in
accordance with the density of the tissue it
passes through and is measured by sensitive
detectors and, from this information,
two-dimensional cross-sectional pictures or
other images may be generated. A computer is
used to generate the image from the
measurements of X-ray beam intensity. Tissue
images can be done with or without contrast
agents. Computed tomography services are
rendered by CT scanners.
(3) "Computed tomography (CT) scanner" means
an imaging machine which combines the
information generated by a scanning X-ray
source and detector system with a computer to
reconstruct a cross-sectional image of the full
body, including the head.
(4) "Computed tomography (CT) service area"
means a geographical area defined by the
applicant from which the applicant projects to
serve patients.
(5) "CT scan" means one discrete image of a
patient produced by a CT scanner.
(6) "Existing CT scanner" means a computed
tomography scanner in operation prior to the
beginning of the review period.
(7) "Fixed CT scanner" means a CT scanner that
is used at only one location or campus.
(8) "HECT unit" means a unit that is equivalent to
one CT scan which is derived by applying a
weighted conversion factor to a CT scan in
accordance with the Head Equivalent
Computed Tomography studies formula
developed by the National Electric
Manufacturers, based on the "Leonard
Methodology".
(9) "Mobile CT scanner" means a CT scanner and
transporting equipment which is moved to
provide services at two or more host facilities.
(10) "Related entity" means the parent company of
the applicant, a subsidiary company of the
applicant (i.e., the applicant owns 50 percent
or more of another company), a joint venture
in which the applicant is a member, or a
company that shares common ownership with
the applicant (i.e., the applicant and another
company are owned by some of the same
persons).
History Note: Authority G.S. 131E-177(1); 131E-183(b);
Temporary Adoption Eff. September 1, 1993 for a period of 180
days or until the permanent rule becomes effective, whichever is
sooner;
Eff. February 1, 1994;
Amended Eff. February 1, 2008.
10A NCAC 14C .2302 INFORMATION REQUIRED OF
APPLICANT
(a) An applicant proposing to acquire a CT scanner shall use the
acute care facility/medical equipment application form.
(b) An applicant proposing to acquire a CT scanner shall
provide the number of CT scans that have been performed on
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each existing CT scanner which the applicant or a related entity
owns a controlling interest in and is located in the proposed CT
service area for each type of CT scan listed in this Paragraph for
the previous 12 month period:
(1) head scan without contrast;
(2) head scan with contrast;
(3) head scan without and with contrast;
(4) body scan without contrast;
(5) body scan with contrast;
(6) body scan without contrast and with contrast;
(7) biopsy in addition to body scan with or
without contrast; and
(8) abscess drainage in addition to body scan with
or without contrast.
(c) The applicant shall project the number of CT scans to be
performed on the proposed CT scanner for each type of CT scan
listed in this Paragraph for each of the first three years the new
CT scanner is proposed to be operated:
(1) head scan without contrast;
(2) head scan with contrast;
(3) head scan without and with contrast;
(4) body scan without contrast;
(5) body scan with contrast;
(6) body scan without contrast and with contrast;
(7) biopsy in addition to body scan with or
without contrast; and
(8) abscess drainage in addition to body scan with
or without contrast.
(d) The applicant shall convert the historical and projected
number of CT scans to HECT units as follows:
Type of CT Scan
No. of
Scans
Conversion
Factor HECT Units
1 Head without contrast X 1.00 =
2 Head with contrast X 1.25 =
3 Head without and with contrast X 1.75 =
4 Body without contrast X 1.50 =
5 Body with contrast X 1.75 =
6 Body without contrast and with contrast X 2.75 =
7 Biopsy in addition to body scan with or
without contrast
X 2.75 =
8 Abscess drainage in addition to body scan
with or without contrast
X 4.00 =
(e) An applicant proposing to acquire a mobile CT scanner shall
provide the information requested in Paragraphs (b), (c), and (d)
of this Rule for each proposed host facility.
(f) The applicant shall provide projected charges for each of the
20 most frequent CT scans to be performed for each of the first
three years the new CT scanner is proposed to be operated.
(g) If an applicant that has been utilizing a mobile CT scanner
proposes to acquire a fixed CT scanner for its facility, the
applicant shall demonstrate that its projected charge per CPT
code shall not increase more than 10 percent over its current
charge per CPT code on the mobile CT scanner.
(h) An applicant proposing to acquire a mobile CT scanner shall
provide copies of letters of intent from and proposed contracts
with all of the proposed host facilities of the new CT scanner.
(i) An applicant proposing to acquire a CT scanner shall
demonstrate that it has a written commitment from a radiologist,
licensed to practice medicine in North Carolina, to provide
professional interpretation services for the applicant.
(j) An applicant proposing to acquire a CT scanner shall
demonstrate that the CT scanner shall be available and staffed
for performing CT scan procedures at least 66 hours per week.
History Note: Authority G.S. 131E-177(1); 131E-183(b);
Temporary Adoption Eff. September 1, 1993 for a period of 180
days or until the permanent rule becomes effective, whichever is
sooner;
Eff. February 1, 1994;
Amended Eff. February 1, 2008.
10A NCAC 14C .2303 PERFORMANCE STANDARDS
An applicant proposing to acquire a CT scanner shall
demonstrate each of the following:
(1) each fixed or mobile CT scanner to be
acquired shall be projected to perform 5,100
HECT units annually in the third year of
operation of the proposed equipment;
(2) each existing fixed or mobile CT scanner
which the applicant or a related entity owns a
controlling interest in and is located in the
applicant's CT service area shall have
performed at least 5,100 HECT units in the 12
month period prior to submittal of the
application; and
(3) each existing and approved fixed or mobile CT
scanner which the applicant or a related entity
owns a controlling interest in and is located in
the applicant's CT service area shall be
projected to perform 5,100 HECT units
annually in the third year of operation of the
proposed equipment.
History Note: Authority G.S. 131E-177(1); 131E-183(b);
Temporary Adoption Eff. September 1, 1993 for a period of 180
days or until the permanent rule becomes effective, whichever is
sooner;
Eff. February 1, 1994;
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Amended Eff. February 1, 2008.
10A NCAC 14C .2304 SUPPORT SERVICES
(a) With the exception of applicants that currently provide CT
services, an applicant proposing to acquire a CT scanner shall
document the availability of the following diagnostic services:
(1) diagnostic radiology services;
(2) therapeutic radiology services;
(3) nuclear medicine services; and
(4) diagnostic ultrasound services.
(b) An applicant proposing to acquire a mobile CT scanner shall
provide:
(1) referral agreements between each host site and
at least one other provider of CT services in
the proposed CT service area to document the
availability of CT services if patients require
them when the mobile unit is not in service at
that host site; and
(2) documentation that each of the services listed
in Paragraphs (a) and (b) of this Rule shall be
available at each host facility or shall be
available through written affiliation or referral
agreements.
History Note: Authority G.S. 131E-177(1); 131E-183(b);
Temporary Adoption Eff. September 1, 1993 for a period of 180
days or until the permanent rule becomes effective, whichever is
sooner;
Eff. February 1, 1994;
Amended Eff. February 1, 2008.
10A NCAC 14C .2305 STAFFING AND STAFF
TRAINING
(a) With the exception of applicants that currently provide CT
services, an applicant proposing to acquire a CT scanner shall
demonstrate that it can meet the following staffing requirements:
(1) one radiologist who is certified by the
American Board of Radiologists and has had:
(A) training in computed tomography as
an integral part of his or her residency
training program; or
(B) six months of supervised CT
experience under the direction of a
diagnostic radiologist who is certified
by the American Board of
Radiologists; or
(C) at least six months of fellowship
training, or its equivalent, in CT; or
(D) a combination of CT experience and
fellowship training equivalent to Parts
(a)(1) (A), (B), or (C) of this Rule;
(2) at least one radiology technologist registered
by the American Registry of Radiologic
Technologists shall be present during the hours
of operation of the CT unit; and
(3) a radiation physicist with training in medical
physics shall be available for consultation for
the calibration and maintenance of the
equipment. The radiation physicist may be an
employee or an independent contractor.
(b) With the exception of applicants that currently provide CT
services, an applicant proposing to acquire a CT scanner shall
demonstrate that the following staff training is provided to
clinical personnel:
(1) certification in cardiopulmonary resuscitation
(CPR) and basic cardiac life support; and
(2) an organized program of staff education and
training which is integral to the services
program and ensures improvements in
technique and the proper training of new
personnel.
(c) An applicant proposing to acquire a mobile CT scanner shall
document that the requirements in Paragraphs (a) and (b) of this
Rule shall be met at each host facility.
History Note: Authority G.S. 131E-177(1); 131E-183(b);
Temporary Adoption Eff. September 1, 1993 for a period of 180
days or until the permanent rule becomes effective, whichever is
sooner;
Eff. February 1, 1994;
Amended Eff. February 1, 2008.
* * * * * * * * * * * * * * * * * * * *
10A NCAC 43D .0706 AUTHORIZED WIC VENDORS
(a) Vendor applicants and authorized vendors shall be placed
into peer groups as follows:
(1) When annual WIC supplemental food sales are
not yet available, vendor applicants and
authorized vendors, excluding chain stores,
stores under a WIC corporate agreement,
military commissaries, predominantly WIC
vendors, and free-standing pharmacies, shall
be placed into peer groups based on the
number of cash registers in the store until six
months WIC supplemental food sales become
available. The following are the peer groups
based on the number of cash registers in the
store:
Peer Group I - - zero to two cash
registers;
Peer Group II - - three to five cash
registers; and
Peer Group III - - six or more cash
registers.
WIC sales figures of new vendors shall be
reviewed six months from authorization. A
vendor whose first six months of WIC sales
exceed twenty five thousand dollars ($25,000)
shall be placed in the peer group designation in
accordance with the dollar thresholds of
Subparagraph (a)(2) of this Rule.
(2) Authorized vendors for which annual WIC
supplemental food sales is available, excluding
chain stores, stores under a WIC corporate
agreement, military commissaries,
predominantly WIC vendors, and free-
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1511
standing pharmacies, shall be placed into peer
groups as follows, except as provided in
Subparagraph (a)(8) of this Rule.
Peer Group I - - two thousand dollars
($2,000) to twenty five thousand
dollars ($25,000) annually in WIC
supplemental food sales at the store;
Peer Group II - - greater than twenty
five thousand dollars ($25,000) but
not exceeding seventy five thousand
dollars ($75,000) annually in WIC
supplemental food sales at the store;
Peer Group III - - greater than seventy
five thousand dollars ($75,000) but
not exceeding three hundred thousand
dollars ($300,000) annually in WIC
supplemental food sales at the store;
and
Peer Group IV - - greater than three
hundred thousand dollars ($300,000)
annually in WIC supplemental food
sales at the store;
(3) Chain stores, stores under a WIC corporate
agreement (20 or more authorized vendors
under one agreement), military commissaries,
predominantly WIC vendors, and free-standing
pharmacies, including free-standing
pharmacy chain stores and free-standing
pharmacies participating under a WIC
corporate agreement, shall be placed into peer
groups as follows:
Peer Group IV - - chain stores, stores
under a WIC corporate agreement (20
or more authorized vendors under one
agreement), military commissaries,
and predominantly WIC vendors; and
Peer Group V - - free-standing
pharmacies, including free-standing
pharmacy chain stores and free-standing
pharmacies participating
under a WIC corporate agreement;
(4) Annual WIC supplemental food sales is the
dollar amount in sales of WIC supplemental
foods at the store within a 12-month period.
(5) If a vendor applicant has at least 30 percent
ownership in the applying store and at least 30
percent ownership in a store(s) already
authorized, the applying store shall be placed
in the peer group of the highest designation of
the already authorized stores(s). Upon
reauthorization of the WIC Vendor
Agreement, all stores held under common
ownership shall be placed in the highest peer
group among those held commonly. Common
ownership is ownership of 30 percent or more
in two or more stores.
(6) In determining a vendor's peer group
designation based on annual WIC
supplemental food sales under Subparagraph
(a)(2) of this Rule, the state agency shall look
at the most recent 12-month period for which
sales data is available. If the most recent
available 12-month period of WIC sales data
ends more than one year prior to the time of
designation, the peer group designation shall
be based on the number of cash registers in the
store in accordance with Subparagraph (a)(1)
of this Rule.
(7) The state agency may reassess an authorized
vendor's peer group designation at any time
during the vendor's agreement period and
place the vendor in a different peer group if
upon reassessment the state agency determines
that the vendor is no longer in the appropriate
peer group.
(8) A vendor applicant previously authorized in a
peer group under Subparagraph (a)(2) of this
Rule that is being reauthorized following the
nonrenewal or termination of its Agreement or
disqualification from the WIC Program shall
be placed into the same peer group the vendor
applicant was previously in under
Subparagraph (a)(2) of this Rule, provided that
no more than one year has passed since the
nonrenewal, termination or disqualification. If
more than one year has passed, the vendor
applicant shall be placed into a peer group in
accordance with Subparagraph (a)(1) of this
Rule.
(b) To become authorized as a WIC vendor, a vendor applicant
shall comply with the following vendor selection criteria:
(1) A vendor applicant shall accurately complete a
WIC Vendor Application, a WIC Price List,
and a WIC Vendor Agreement. A vendor
applicant shall submit its current highest shelf
price for each WIC supplemental food listed
on the WIC Price List.
(2) A vendor applicant, at the time of application
and throughout the term of authorization, shall
submit all completed forms to the local WIC
program, except that a corporate entity
operating under a WIC corporate agreement
shall submit one completed WIC corporate
agreement and the WIC Price Lists to the state
agency and a separate WIC Vendor
Application for each store to the local WIC
agency. A corporate entity operating under a
WIC corporate agreement may submit a single
WIC Price List for those stores that have the
same prices for WIC supplemental foods in
each store, rather than submitting a separate
WIC Price List for each store.
(3) A vendor applicant shall agree to purchase all
infant formula, exempt infant formula, and
WIC-eligible medical food directly from:
(A) Infant formula manufacturers
registered with the U.S. Food and
Drug Administration;
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(B) Food and drug wholesalers registered
with the North Carolina Secretary of
State and inspected or licensed by the
North Carolina Department of
Agriculture and Consumer Services;
(C) Retail food stores that purchase
directly from infant formula
manufacturers in accordance with
Part (b)(3)(A) of this Rule or an
approved wholesaler in accordance
with Part (b)(3)(B) of this Rule; or
(D) A supplier on another state's list of
approved infant formula suppliers as
verified by the state agency.
Authorized vendors shall agree to make
available to the state or local WIC agency,
upon request, invoices or receipts documenting
purchases of all infant formula, exempt infant
formula, and WIC-eligible medical food
directly from the above listed sources.
Acceptable receipts include company
letterhead or name of
wholesaler/manufacturer, date(s) of purchase
and itemization of purchases reflecting infant
formula, exempt infant formula, and WIC-eligible
medical food purchases.
(4) A vendor applicant's current highest shelf price
for each WIC supplemental food listed on the
WIC Price List must not exceed the maximum
price set by the state agency for each
supplemental food within that vendor
applicant's peer group, except as provided in
Part (b)(4)(B) of this Rule.
(A) The most recent WIC Price Lists
submitted by authorized vendors
within the same peer group shall be
used to determine the maximum price
for each supplemental food. The WIC
Price Lists of predominantly WIC
vendors shall be excluded from the
maximum price determination. The
maximum price shall be the 97th
percentile of the current highest shelf
prices for each supplemental food
within a vendor peer group. The state
agency shall reassess the maximum
price set for each supplemental food
at least four times a year. For two of
its price assessments, the state agency
shall use the WIC Price Lists which
must be submitted by all vendors by
April 1 and October 1 each year in
accordance with Subparagraph
(c)(30) of this Rule. The other two
price assessments shall be based on
WIC Price Lists requested from a
sample of vendors within each peer
group in January and July of each
year. The sample of vendors shall
exclude predominantly WIC vendors.
(B) If any of the vendor applicant's
price(s) on its WIC Price List exceed
the maximum price(s) set by the state
agency for that applicant's peer group,
the applicant shall be notified in
writing. Within 30 days of the date
of the written notice, the vendor
applicant may resubmit price(s) that it
will charge the state WIC Program
for those foods that exceeded the
maximum price(s). If none of the
vendor applicant's resubmitted prices
exceed the maximum prices set by the
state agency, the vendor applicant
shall be deemed to have met the
requirements of Subparagraph (b)(4)
of this Rule. If any of the vendor
applicant's resubmitted prices still
exceed the maximum prices set by the
state agency, or the vendor applicant
does not resubmit prices within 30
days of the date of written notice, the
application shall be denied in writing.
The vendor applicant must wait 90
days from the date of receipt of the
written denial to reapply for
authorization.
(5) A vendor applicant shall pass a monitoring
review by the local WIC program to determine
whether the store has minimum inventory of
supplemental foods as specified in
Subparagraph (c)(23) of this Rule. A vendor
applicant who fails this review shall be
allowed a second opportunity for an
unannounced monitoring review within 14
days. If the applicant fails both reviews, the
applicant shall wait 90 days from the date of
the second monitoring review before
submitting a new application.
(6) A vendor applicant shall attend, or cause a
manager or other authorized store
representative to attend, WIC Vendor Training
provided by the local WIC Program prior to
authorization and ensure that the applicant's
employees receive instruction in WIC program
procedures and requirements.
(7) An applicant shall mark the current shelf
prices of all WIC supplemental foods on the
foods or have the prices posted on the shelf or
display case at all times.
(8) The store shall be located at a permanent and
fixed location within the State of North
Carolina. The store shall be located at the
address indicated on the WIC vendor
application and shall be the site at which WIC
supplemental foods are selected by the WIC
customer.
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1513
(9) The store shall be open throughout the year for
business with the public at least six days a
week for at least 40 hours per week between
8:00 a.m. and 11:00 p.m.
(10) The store shall not use either the acronym
"WIC" or the WIC logo, including close
facsimiles, in total or part, either in the official
name in which the business is registered or in
the name under which it does business, if
different.
(11) A vendor applicant shall not submit false,
erroneous, or misleading information in an
application to become an authorized WIC
vendor or in subsequent documents submitted
to the state or local WIC agency.
(12) The owner(s), officer(s) or manager(s) of a
vendor applicant shall not be employed, or
have a spouse, child, or parent who is
employed by the state WIC program or the
local WIC program serving the county in
which the vendor applicant conducts business.
A vendor applicant shall not have an employee
who handles, transacts, deposits, or stores
WIC food instruments who is employed, or
has a spouse, child, or parent who is employed
by the state WIC program or the local WIC
program serving the county in which the
vendor applicant conducts business.
(13) WIC vendor authorization shall be denied if in
the last six years any of the vendor applicant's
current owners, officers, or managers have
been convicted of or had a civil judgment
entered against them for any activity indicating
a lack of business integrity, including, fraud,
antitrust violations, embezzlement, theft,
forgery, bribery, falsification or destruction of
records, making false statements, receiving
stolen property, making false claims, and
obstruction of justice. For purposes of this
Subparagraph, "convicted" or "conviction"
means and includes a plea of guilty, a verdict
or finding of guilt by a jury, judge, magistrate,
or other duly constituted, established,
adjudicating body, tribunal, or official, either
civilian or military, or a plea of no contest,
nolo contendere, or the equivalent. Entry of a
prayer for judgment continued following a
conviction as defined in this Rule is the same
as a conviction for purposes of this
Subparagraph.
(14) A vendor applicant shall not be authorized if it
is currently disqualified from the Food Stamp
Program or it has been assessed a Food Stamp
Program civil money penalty for hardship and
the disqualification period that otherwise
would have been imposed has not expired.
(15) A vendor applicant, excluding chain stores and
stores under a WIC corporate agreement that
have a separate manager on site for each store,
shall not have an owner who holds a financial
interest in any of the following:
(A) a Food Stamp vendor which is
disqualified from participation in the
Food Stamp Program or has been
assessed a civil money penalty for
hardship in lieu of disqualification
and the time period during which the
disqualification would have run, had
a penalty not been paid, is continuing;
or
(B) another WIC vendor which is
disqualified from participation in the
WIC Program or which has been
assessed an administrative penalty
pursuant to G.S. 130A-22(c1),
Paragraph (k), or Paragraph (l) of this
Rule as the result of violation of
Paragraphs (g), (h)(1)(A), (h)(1)(B),
(h)(1)(C), (h)(1)(D) or (h)(2)(D) of
this Rule, and if assessed a penalty,
the time during which the
disqualification would have run, had
a penalty not been assessed, is
continuing.
The requirements of this Subparagraph shall
not be met by the transfer or conveyance of
financial interest during the period of
disqualification. Additionally, the
requirements of this Subparagraph shall not be
met even if such transfer or conveyance of
financial interest in a Food Stamp vendor
under Part (b)(15)(A) of this Subparagraph
prematurely ends the disqualification period
applicable to that Food Stamp vendor. The
requirements of this Subparagraph shall apply
until the time the Food Stamp vendor
disqualification otherwise would have expired.
(16) A vendor applicant, excluding free-standing
pharmacies, must have Food Stamp Program
authorization for the store as a prerequisite for
WIC vendor authorization and must provide its
Food Stamp Program authorization number to
the state agency.
(17) A vendor applicant shall not become
authorized as a WIC vendor if the store has
been disqualified from participation in the
WIC Program and the disqualification period
has not expired.
(c) By signing the WIC Vendor Agreement, the vendor agrees
to:
(1) Process WIC program food instruments in
accordance with the terms of this agreement,
state and federal WIC program rules, and
applicable law;
(2) Accept WIC program food instruments in
exchange for WIC supplemental foods.
Supplemental foods are those foods which
APPROVED RULES
22:17 NORTH CAROLINA REGISTER MARCH 3, 2008
1514
satisfy the requirements of 10A NCAC 43D
.0501;
(3) Provide only the authorized supplemental
foods listed on the food instrument, accurately
determine the charges to the WIC program,
and complete the "Pay Exactly" box on the
food instrument prior to obtaining the
countersignature of the WIC customer. The
WIC customer is not required to get all of the
supplemental foods listed on the food
instrument;
(4) Enter in the "Pay Exactly" box on the food
instrument only the total amount of the current
shelf prices, or less than the current shelf
prices, for the supplemental food actually
provided and shall not charge or collect sales
taxes for the supplemental food provided;
(5) Charge no more for supplemental food
provided to a WIC customer than to a non-
WIC customer or no more than the current
shelf price, whichever is less;
(6) Accept payment from the state WIC Program
only up to the maximum price set by the state
agency for each food instrument within that
vendor's peer group. The maximum price for
each food instrument shall be based on the
maximum prices set by the state agency for
each supplemental food, as described in Part
(b)(4)(A) of this Rule, listed on the food
instrument. A food instrument deposited by a
vendor for payment which exceeds the
maximum price shall be paid at the maximum
price set by the state agency for that food
instrument. Payment to predominantly WIC
vendors for a food instrument shall not exceed
the statewide average for that food instrument.
This average excludes data from
predominantly WIC vendors;
(7) Not charge the state WIC Program more than
the maximum price set by the state agency
under Part (b)(4)(A) of this Rule for each
supplemental food within the vendor's peer
group;
(8) For non-contract brand milk-based and soy-based
infant formulas, excluding exempt infant
formulas, accept payment from the state WIC
Program only up to the maximum price
established for contract brand infant formulas
under Part (b)(4)(A) of this Rule for the
vendor's peer group;
(9) For free-standing pharmacies, provide only
infant formula and WIC-eligible medical
foods;
(10) Excluding free-standing pharmacies, redeem at
least two thousand dollars ($2,000) annually in
WIC supplemental food sales. Failure to
redeem at least two thousand dollars ($2,000)
annually in WIC supplemental food sales shall
result in termination of the WIC Vendor
Agreement. The store must wait 180 days to
reapply for authorization;
(11) Accept WIC program food instruments only
on or between the "Date of Issue" and the
"Participant Must Use By" dates;
(12) Prior to obtaining the countersignature, enter
in the "Date Transacted" box the month, day
and year the WIC food instrument is
exchanged for supplemental food;
(13) Ensure that the food instrument is
countersigned in the presence of the cashier;
(14) Refuse acceptance of any food instrument on
which quantities, signatures or dates have been
altered;
(15) Not transact food instruments in whole or in
part for cash, credit, unauthorized foods, or
non-food items;
(16) Not provide refunds or permit exchanges for
authorized supplemental foods obtained with
food instruments, except for exchanges of an
identical authorized supplemental food when
the original authorized supplemental food is
defective, spoiled, or has exceeded its "sell
by," "best if used by," or other date limiting
the sale or use of the food. An identical
authorized supplemental food means the exact
brand, type and size as the original authorized
supplemental food obtained and returned by
the WIC customer;
(17) Imprint the authorized WIC vendor stamp in
the "Pay the Authorized WIC Vendor Stamped
Here" box on the face of the food instrument
to enable the vendor number to be read during
the Program editing process;
(18) Imprint the vendor's bank deposit stamp or the
vendor's name, address and bank account
number in the "Authorized WIC Vendor
Stamp" box in the endorsement;
(19) Promptly deposit WIC program food
instruments in the vendor's bank. All North
Carolina WIC program food instruments must
be deposited in the vendor's bank within 60
days of the "Date of Issue" on the food
instrument;
(20) Ensure that the authorized WIC vendor stamp
is used only for the purpose and in the manner
authorized by this agreement and assume full
responsibility for the unauthorized use of the
authorized WIC vendor stamp;
(21) Maintain storage so only the staff designated
by the vendor owner or manager have access
to the authorized WIC vendor stamp and
immediately report loss of this stamp to the
local agency;
(22) Notify the local WIC agency of misuse
(attempted or actual) of the WIC program food
instrument(s);
(23) Maintain a minimum inventory of
supplemental foods in the store for purchase.
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Supplemental foods that are outside of the
manufacturer's expiration date do not count
towards meeting the minimum inventory
requirement. The following items and sizes
constitute the minimum inventory of
supplemental foods for vendors in Peer Groups
I through III of Subparagraph (a)(1) of this
Rule, vendors in Peer Groups I through IV of
Subparagraph (a)(2) of this Rule and vendors
in Peer Group IV of Subparagraph (a)(3) of
this Rule:
Food Item Type of Inventory Quantities Required
Milk Whole fluid: gallon Total of 6 gallons
fluid milk
-and-
Skim/lowfat fluid:
gallon
Nonfat dry: quart Total of 5 quarts
package when reconstituted
-or-
Evaporated: 12 ounce 5 cans
can
Cheese 2 varieties in 8 or 16 ounce Total of 6 pounds
package
Cereals 4 types (minimum Total of 12 packages
package size 12 ounce)
Eggs Grade A, large or 6 dozen
extra-large: white
or brown: one dozen
size carton
Juices
Frozen: 11.5-12 ounce 10 containers
container
Single strength: 10 containers
46 ounce container
Orange juice must be available
in frozen and single strength.
A second flavor must be
available in frozen or single
strength.
Dried Peas and Beans 2 varieties: 3 packages
one pound package
or
Peanut Butter Plain (smooth, 3 containers
crunchy, or whipped;
No reduced fat):
18 ounce container
Infant Cereal Plain-no fruit added: 6 boxes
2 cereal grains
(one must be rice);
8- ounce box; brand
specified in Vendor
Agreement
Infant Formula milk-based concentrate; 31 cans
13 ounce
-and-soy-
based concentrate; 15 cans
13 ounce
-and-milk-
based powder; 9 cans
12 – 14.3 ounce
-and-soy-
based powder; 4 cans
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1516
12 – 14.3 ounce
Brand specified in Vendor
Agreement
Tuna Chunk light in water: 4 cans
6-6.5 ounce can
Carrots Raw, canned or frozen 2 packages/cans
14.5-16 ounce size
All vendors in Peer Groups I through III of Subparagraph (a)(1) of this Rule, Peer Groups I through IV of
Subparagraph (a)(2) of this Rule and Peer Groups IV and V of Subparagraph (a)(3) of this Rule shall supply milk or
soy-based infant formula in 32 ounce ready-to-feed or lactose-free infant formula in 32 ounce ready-to-feed or
powder within 48 hours of request by the state or local WIC agency;
(24) Ensure that all supplemental foods in the store
for purchase are within the manufacturer's
expiration date;
(25) Permit the purchase of supplemental food
without requiring other purchases;
(26) Attend, or cause a manager or other authorized
store representative to attend, annual vendor
training class upon notification of class by the
local agency;
(27) Inform and train vendor's cashiers and other
staff on WIC Program requirements;
(28) Be accountable for the actions of its owners,
officers, managers, agents, and employees who
commit vendor violations;
(29) Allow monitoring and inspection of the store
premises and procedures to ensure compliance
with the agreement and state and federal WIC
Program rules, regulations and statutes. This
includes allowance of access to all WIC food
instruments at the store, vendor records
pertinent to the purchase and sale of WIC
supplemental foods, including invoices, copies
of purchase orders, and any other proofs of
purchase, federal and state corporate and
individual income tax and sales and use tax
returns and all records pertinent to these
returns, and books and records of all financial
and business transactions. These records must
be retained by the vendor for a period of three
years or until any audit pertaining to these
records is resolved, whichever is later. Failure
or inability to provide these records or
providing false records for an inventory audit
shall be deemed a violation of 7 C.F.R.
246.12(l)(1)(iii)(B) and Subparagraph (g)(1) of
this Rule;
(30) Submit a current accurately completed WIC
Price List when signing this agreement, and by
April 1and October 1 of each year. The
vendor also agrees to submit a WIC Price List
within one week of any written request by the
state or local WIC agency. Failure to submit a
WIC Price List as required by this
Subparagraph within 30 days of the required
submission date shall result in disqualification
of the vendor from the WIC Program in
accordance with Part (h)(1)(D) of this Rule;
(31) Reimburse the state agency within 30 days of
written notification of a claim assessed due to
a vendor violation that affects payment to the
vendor or a claim assessed due to the
unauthorized use of the authorized WIC
vendor stamp. The state agency shall deny
payment or assess a claim in the amount of the
full purchase price of each food instrument
rendered invalid under Subparagraphs (a)(2),
(a)(5), (a)(6) or (a)(7) of Rule .0704 of this
Section. Denial of payment by the state
agency or payment of a claim by the vendor
for a vendor violation(s) shall not absolve the
vendor of the violation(s). The vendor shall
also be subject to any vendor sanctions
authorized under this Rule for the vendor
violation(s);
(32) Not seek restitution from the WIC customer
for reimbursement paid by the vendor to the
state agency or for WIC food instruments not
paid or partially paid by the state agency.
Additionally, the vendor shall not charge the
WIC customer for authorized supplemental
foods obtained with food instruments;
(33) Not contact a WIC customer outside the store
regarding the transaction or redemption of
WIC food instruments;
(34) Notify the local WIC agency in writing at least
30 days prior to a change of ownership,
change in location, cessation of operations, or
withdrawal from the WIC Program. Change
of ownership, change in location of more than
three miles from the vendor's previous
location, cessation of operations, withdrawal
from the WIC Program or disqualification
from the WIC Program shall result in
termination of the WIC Vendor Agreement by
the state agency. Change of ownership,
change in location, ceasing operations,
withdrawal from the WIC Program or
nonrenewal of the WIC Vendor Agreement
shall not stop a disqualification period
applicable to the store;
(35) Return the authorized WIC vendor stamp to
the local WIC agency upon termination of this
agreement or disqualification from the WIC
Program;
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1517
(36) Offer WIC customers the same courtesies as
offered to other customers;
(37) Not provide incentive items to WIC customers
unless each incentive item is less than two
dollars ($2.00) in cost to the vendor in
accordance with federal regulations. If
incentive items are offered to WIC customers,
no more than one incentive item per visit is
permitted. Vendors shall not provide to WIC
customers transportation to or from the
vendor's premises, delivery of supplemental
foods, lottery tickets, nor cash gifts. The
limitations of this Subparagraph apply only to
predominantly WIC vendors;
(38) Reapply to continue to be authorized beyond
the period of its current WIC Vendor
Agreement. Additionally, a store must reapply
to become authorized following the expiration
of a disqualification period or termination of
the Agreement. In all cases, the vendor
applicant shall be subject to the vendor
selection criteria of Paragraph (b) of this Rule;
and
(39) Comply with all the requirements for vendor
applicants of Subparagraphs (b)(4) and (b)(7)
through (b)(16) of this Rule throughout the
term of authorization. The state agency may
reassess a vendor at any time during the
vendor's period of authorization to determine
compliance with these requirements. The state
agency shall terminate the WIC Vendor
Agreement of any vendor that fails to comply
with Subparagraphs (b)(4), (b)(8), (b)(9),
(b)(12), (b)(13) or (b)(15) of this Rule during
the vendor's period of authorization, and
terminate the Agreement of or sanction or both
any vendor that fails to comply with
Subparagraphs (b)(7), (b)(11), (b)(14) or
(b)(16) of this Rule during the vendor's period
of authorization.
(d) By signing the WIC Vendor Agreement, the local agency
agrees to the following:
(1) Provide annual vendor training classes on WIC
procedures and rules;
(2) Monitor the vendor's performance under this
agreement to ensure compliance with the
agreement, state and federal WIC program
rules, regulations, and applicable law. A
minimum of one-third of all authorized
vendors shall be monitored within a contract
year (October 1 through September 30) and all
vendors shall be monitored at least once within
three consecutive contract years. Any vendor
shall be monitored within one week of written
request by the state agency;
(3) Provide vendors with the North Carolina WIC
Vendor Manual, all Vendor Manual
amendments, blank WIC Price Lists, and the
authorized WIC vendor stamp indicated on the
signature page of the WIC Vendor Agreement;
(4) Assist the vendor with questions which may
arise under this agreement or the vendor's
participation in the WIC Program; and
(5) Keep records of the transactions between the
parties under this agreement pursuant to 10A
NCAC 43D .0206.
(e) In order for a food retailer or free-standing pharmacy to
participate in the WIC Program a current WIC Vendor
Agreement must be signed by the vendor, the local WIC agency,
and the state agency.
(f) If an application for status as an authorized WIC vendor is
denied, the applicant is entitled to an administrative appeal as
described in Section .0800 of this Subchapter.
(g) Title 7 C.F.R. 246.12(l)(1)(i) through (vi) and (xii) are
incorporated by reference with all subsequent amendments and
editions. In accordance with 7 CFR 246.12(l)(1)(i), the state
agency shall not allow imposition of a civil money penalty in
lieu of disqualification for a vendor permanently disqualified. A
pattern, as referenced in 7 CFR 246.12 (l)(1)(iii)(B) through (F)
and 246.12(l)(1)(iv), shall be established as follows:
(1) claiming reimbursement for the sale of an
amount of a specific supplemental food item
which exceeds the store's documented
inventory of that supplemental food item for
six or more days within a 60-day period. The
six or more days do not have to be consecutive
days within the 60-day period. Failure or
inability to provide records or providing false
records required under Subparagraph (c)(29)
of this Rule for an inventory audit shall be
deemed a violation of 7 C.F.R.
246.12(l)(1)(iii)(B) and this Subparagraph;
(2) two occurrences of vendor overcharging
within a 12-month period;
(3) two occurrences of receiving, transacting or
redeeming food instruments outside of
authorized channels, including the use of an
unauthorized vendor or an unauthorized
person within a 12-month period;
(4) two occurrences of charging for supplemental
food not received by the WIC customer within
a 12-month period;
(5) two occurrences of providing credit or non-food
items, other than alcohol, alcoholic
beverages, tobacco products, cash, firearms,
ammunition, explosives, or controlled
substances as defined in 21 U.S.C. 802, in
exchange for food instruments within a 12-
month period; or
(6) three occurrences of providing unauthorized
food items in exchange for food instruments,
including charging for supplemental food
provided in excess of those listed on the food
instrument within a 12-month period.
(h) Title 7 C.F.R. Section 246.12(l)(2)(i) is incorporated by
reference with all subsequent amendments and editions. Except
as provided in 7 C.F.R. 246.12 (l)(1)(xii), a vendor shall be
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1518
disqualified from the WIC Program for the following state-established
violations in accordance with the sanction system
below. The total period of disqualification shall not exceed one
year for state-established violations investigated as part of a
single investigation, as defined in Paragraph (i) of this Rule:
(1) When a vendor commits any of the following
violations, the state-established
disqualification period shall be:
(A) 90 days for each occurrence of failure
to properly transact a WIC food
instrument by not completing the date
or purchase price on the WIC food
instrument before obtaining the
countersignature, by not obtaining the
countersignature in the presence of
the cashier, or by accepting a WIC
food instrument prior to the "Date of
Issue" or after the "Participant Must
Use By" dates on the food instrument;
(B) 60 days for each occurrence of
requiring a cash purchase to transact a
WIC food instrument;
(C) 30 days for each occurrence of
requiring the purchase of a specific
brand when more than one WIC
supplemental food brand is available;
and
(D) 30 days for each occurrence of failure
to submit a WIC Price List as
required by Subparagraph (c)(30) of
this Rule.
(2) When a vendor commits any of the following
violations, the vendor shall be assessed
sanction points as follows for each occurrence:
(A) 2.5 points for:
(i) stocking WIC supplemental
foods outside of the
manufacturer's expiration
date; or
(ii) unauthorized use of the
"WIC" acronym or the WIC
logo in accordance with
Paragraph (b)(10) of this
Rule.
(B) 5 points for:
(i) failure to attend annual
vendor training;
(ii) failure to stock minimum
inventory;
(iii) failure to mark the current
shelf prices of all WIC
supplemental foods on the
foods or have the prices
posted on the shelf or
display case; or
(iv) offering improper incentives,
free merchandise, or services
by a predominantly WIC
vendor in accordance with
Subparagraph (c)(37) of this
Rule.
(C) 7.5 points for:
(i) discrimination on the basis
of WIC participation
(separate WIC lines, denying
trading stamps, etc.); or
(ii) contacting a WIC customer
in an attempt to recoup funds
for food instrument(s) or
contacting a WIC customer
outside the store regarding
the transaction or
redemption of WIC food
instruments.
(D) 15 points for:
(i) failure to allow monitoring
of a store by WIC staff when
required;
(ii) failure to provide WIC food
instrument(s) for review
when requested;
(iii) failure to provide store
inventory records when
requested by WIC staff,
except as provided in
Subparagraph (c)(29) and
Subparagraph (g)(1) of this
Rule for failure or inability
to provide records for an
inventory audit;
(iv) nonpayment of a claim made
by the state agency;
(v) providing false information
on vendor records
(application, vendor
agreement, price list, WIC
food instrument(s),
monitoring forms), except as
provided in Subparagraph
(c)(29) and Subparagraph
(g)(1) of this Rule for
providing false records for
an inventory audit; or
(vi) failure to purchase infant
formula, exempt infant
formula, and WIC-eligible
medical food from an
authorized supplier.
(3) For the violations listed in Subparagraph (h)(2)
of this Rule, all sanction points assessed
against a vendor remain on the vendor's record
for 12 months or until the vendor is
disqualified as a result of those points. If a
vendor accumulates 15 or more points, the
vendor shall be disqualified. The nature of the
violation(s) and the number of violations, as
represented by the points assigned in
Subparagraph (h)(2) of this Rule, are used to
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1519
calculate the period of disqualification. The
formula used to calculate the disqualification
period is the number of points assigned to the
violation carrying the highest number of
sanction points multiplied by 18 days.
Additionally, if the vendor has accumulated
more than 15 points, 18 days shall be added to
the disqualification period for each point over
15 points.
(i) For investigations pursuant to this Section, a single
investigation is:
(1) Compliance buy(s) conducted by undercover
investigators within a 12-month period to
detect the following violations:
(A) buying or selling food instruments for
cash (trafficking);
(B) selling firearms, ammunition,
explosives, or controlled substances
as defined in 21 U.S.C. 802, in
exchange for food instruments;
(C) selling alcohol or alcoholic beverages
or tobacco products in exchange for
food instruments;
(D) vendor overcharging;
(E) receiving, transacting, or redeeming
food instruments outside of
authorized channels, including the
use of an unauthorized vendor or an
unauthorized person;
(F) charging for supplemental food not
received by the WIC customer;
(G) providing credit or non-food items,
other than alcohol, alcoholic
beverages, tobacco products, cash,
firearms, ammunition, explosives, or
controlled substances as defined in 21
U.S.C. 802, in exchange for food
instruments;
(H) providing unauthorized food items in
exchange for food instruments,
including charging for supplemental
food provided in excess of those
listed on the food instrument;
(I) failure to properly transact a WIC
food instrument;
(J) requiring a cash purchase to transact a
WIC food instrument; or
(K) requiring the purchase of a specific
brand when more than one WIC
supplemental food brand is available.
(2) Monitoring reviews of a vendor conducted by
WIC staff within a 12-month period which
detect the following violations:
(A) failure to stock minimum inventory;
(B) stocking WIC supplemental food
outside of the manufacturer's
expiration date;
(C) failure to allow monitoring of a store
by WIC staff when required;
(D) failure to provide WIC food
instrument(s) for review when
requested;
(E) failure to provide store inventory
records when requested by WIC staff;
or
(F) failure to mark the current shelf
prices of all WIC supplemental foods
on the foods or have the prices posted
on the shelf or display case.
(3) Any other method used by the state or local
agency to detect the following violations by a
vendor within a 12-month period:
(A) failure to attend annual vendor
training;
(B) failure to submit a WIC Price List as
required by Subparagraph (c)(30) of
this Rule;
(C) discrimination on the basis of WIC
participation (separate WIC lines,
denying trading stamps, etc.);
(D) contacting a WIC customer in an
attempt to recoup funds or food
instrument(s) or contacting a WIC
customer outside the store regarding
the transaction or redemption of WIC
food instruments;
(E) nonpayment of a claim made by the
state agency;
(F) providing false information on vendor
records (application, vendor
agreement, price list, WIC food
instrument(s), monitoring forms); or
(G) claiming reimbursement for the sale
of an amount of a specific
supplemental food item which
exceeds the store's documented
inventory of that supplemental food
item for a specific period of time, or
failure or inability to provide records
or providing false records required
under Subparagraph (c)(29) of this
Rule for an inventory audit.
(j) The Food Stamp Program disqualification provisions in 7
C.F.R. 246.12(l)(1)(vii) are incorporated by reference with all
subsequent amendments and editions.
(k) The participant access provisions of 7 C.F.R.
246.12(l)(1)(ix) and 246.12(l)(8) are incorporated by reference
with all subsequent amendments and editions. The existence of
any of the factors listed in Parts (l)(3)(A), (l)(3)(B) or (l)(3)(C)
of this Rule shall conclusively show lack of inadequate
participant access provided there is no geographic barrier, such
as an impassable mountain or river, to using the other authorized
WIC vendors referenced in these Subparagraphs. The agency
shall not consider other indicators of inadequate participant
access when any of these factors exist.
(l) The following provisions apply to civil money penalties
assessed in lieu of disqualification of a vendor:
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1520
(1) The civil money penalty formula in 7 C.F.R.
246.12(l)(l)(x) is incorporated by reference
with all subsequent amendments and editions,
provided that the vendor's average monthly
redemptions shall be calculated by using the
six-month period ending with the month
immediately preceding the month during
which the notice of administrative action is
dated.
(2) The state agency may also impose civil
money penalties in accordance with G.S.
130A-22(c1) in lieu of disqualification of a
vendor for the state-established violations
listed in Paragraph (h) of this Rule when the
state agency determines that disqualification of
a vendor would result in participant hardship
in accordance with Subparagraph (l)(3) of this
Rule.
(3) In determining whether to disqualify a WIC
vendor for the state-established violations
listed in Paragraph (h) of this Rule, the agency
shall not consider other indicators of hardship
if any of the following factors, which
conclusively show lack of hardship, are found
to exist:
(A) the noncomplying vendor is located
outside of the limits of a city, as
defined in G.S. 160A-2, and another
WIC vendor is located within seven
miles of the noncomplying vendor;
(B) the noncomplying vendor is located
within the limits of a city, as defined
in G.S. 160A-2, and another WIC
vendor is located within three miles
of the noncomplying vendor; or
(C) a WIC vendor, other than the
noncomplying vendor, is located
within one mile of the local agency at
which WIC participants pick up their
food instruments.
(4) The provisions for failure to pay a civil money
penalty in 7 C.F.R. 246.12(l)(6) are
incorporated by reference with all subsequent
amendments and editions.
(m) The provisions of 7 C.F.R. 246.12(l)(1)(viii) prohibiting
voluntary withdrawal from the WIC Program or nonrenewal of
the WIC Vendor Agreement as an alternative to disqualification
are incorporated by reference with all subsequent amendments
and editions.
(n) The provision in 7 C.F.R. 246.12(l)(3) regarding prior
warning to vendors is incorporated by reference with all
subsequent amendments and editions.
(o) The state agency may set off payments to an authorized
vendor if the vendor fails to reimburse the state agency in
accordance with Subparagraph (c)(31) of this Rule.
(p) In accordance with 7 C.F.R. 246.12(l)(7) or 246.12(u)(5) or
both, North Carolina's procedures for dealing with abuse of the
WIC program by authorized WIC vendors do not exclude or
replace any criminal or civil sanctions or other remedies that
may be applicable under any federal and state law.
(q) Notwithstanding other provisions of this Rule, for the
purpose of providing a one-time payment to a non-authorized
store for WIC food instruments accepted by the store, an
agreement for a one-time payment need only be signed by the
store manager and the state agency. The store may request such
one-time payment directly from the state agency. The store
manager shall sign an agreement indicating that the store has
provided foods as prescribed on the food instrument, charged
current shelf prices or less than current shelf prices, not charged
sales tax, and verified the identity of the WIC customer. Any
agreement entered into in this manner shall automatically
terminate upon payment of the food instrument in question.
After entering into an agreement for a one-time payment, a non-authorized
store shall not be allowed to enter into any further
one-time payment agreements for WIC food instruments
accepted thereafter.
(r) Except as provided in 7 C.F.R. 246.18(a)(2), an authorized
WIC vendor shall be given at least 15 days advance written
notice of any adverse action which affects the vendor's
participation in the WIC Program. The vendor appeal
procedures shall be in accordance with 10A NCAC 43D .0800.
History Note: Authority G.S. 130A-361; 7 C.F.R. 246; 42
U.S.C. 1786;
Eff. July 1, 1981;
Amended Eff. August 1, 1995; October 1, 1993; May 1, 1991;
December 1, 1990;
Temporary Amendment Eff. June 23, 2000; May 17, 2000;
Amended Eff. April 1, 2001;
Temporary Amendment Eff. September 1, 2002; July 1, 2002;
Amended Eff. November 1, 2005; August 1, 2004;
Temporary Amendment Eff. July 1, 2006;
Amended Eff. February 1, 2008; April 1, 2007.
TITLE 11 – DEPARTMENT OF INSURANCE
11 NCAC 06A .0101 DEFINITIONS
(a) In this Chapter, unless the context otherwise requires:
(1) "Adjusting company" means any insurance
company, independent adjusting company, or
public adjusting company adjusting claims in
this State.
(2) "Agent Services Division" or "Division"
means the Agent Services Division of the
North Carolina Department of Insurance, the
Division responsible for the licensing,
education and regulation of agents and other
licensees.
(3) "Professional Testing Service" or "Service"
means the organization specializing in the
development and administration of licensing
examinations on a contract basis.
(4) "State Licensing Examination" or
"Examination" means a collection of items
designed to test the applicant's knowledge of
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1521
the basic concepts, principles and laws
relevant to the insurance profession to
determine the competence to be licensed in
North Carolina.
(b) The definitions contained in G.S. 58-33-10 are incorporated
in this Chapter by reference.
History Note: Authority G.S. 58-2-40; 58-33-30(e)(h);
Eff. February 1, 1976;
Readopted Eff. June 12, 1978;
Amended Eff. February 1, 2008; October 1, 1990; February 1,
1989; July 1, 1986.
11 NCAC 06A .0211 N.C. NON-RESIDENT BROKER'S
INSURANCE BOND
History Note: Authority G.S. 58-33-30(f)(1);
Eff. February 1, 1976;
Readopted Eff. June 12, 1978;
Amended Eff. February 1, 1989;
Repealed Eff. February 1, 2008.
11 NCAC 06A .0217 NORTH CAROLINA NOTICE OF
CANCELLATION
History Note: Authority G.S. 58-33-55(a)(b);
Eff. February 1, 1976;
Readopted Eff. June 12, 1978;
Amended Eff. February 1, 1989;
Repealed Eff. February 1, 2008.
11 NCAC 06A .0304 RESPONSIBILITY OF
APPLICANT AT EXAMINATION SITE
(a) Applicants who have not previously failed the same
examination shall bring to the examination site the Examination
Admission Ticket/Certificate of Course Completion, their
confirmation numbers obtained from the testing service at the
time of registration, and two forms of proof of identity, one of
which must be photo bearing.
(b) Applicants who have previously failed an examination may
retake the examination and shall pay applicable fees for each
administration.
(c) Applicants taking the life, accident and health or sickness,
Medicare supplement, long term care, personal lines, property,
or casualty examination shall bring to the examination site an
Examination Admission Ticket/Certificate of Course
Completion, validated by an approved prelicensing school or by
the Division indicating that the applicant has successfully
completed the mandatory prelicensing education requirements as
specified in G.S. 58-33-30(d)(2). The Examination Admission
Ticket/Certificate of Course Completion is valid for 90 days
from the date of course completion or a maximum of five
examination sittings, whichever occurs first.
(d) No applications shall be supplied at the examination site for
completion by applicants; nor shall required supplies be
furnished to applicants.
(e) Applicants shall arrive at the examination site at the time
specified in the current examination schedule.
History Note: Authority G.S. 58-2-40; 58-33-30(d)(2); 58-
33-31; 58-33-30(e); 58-33-125;
Eff. February 1, 1976;
Readopted Eff. June 12, 1978;
Amended Eff. February 1, 2008; April 1, 2003; April 1, 1996;
October 1, 1990; February 1, 1989.
11 NCAC 06A .0402 LICENSING OF RESIDENT
AGENT, LTD REPRESENTATIVE AND ADJUSTER
(a) An applicant shall hold a life license before making
application for a variable life and variable annuity product
license. An agent licensed to sell variable life and variable
annuity products shall be appointed by a company authorized to
sell variable annuities and variable life insurance products in
North Carolina. The company shall verify that the agent has met
the requirements of the NASD or its successor organization.
(b) A limited representative shall be appointed with each
company for which he will solicit business for the following
kinds of insurance:
(1) Dental services;
(2) Limited line credit insurance;
(3) Motor club;
(4) Prearrangement insurance, as defined in G.S.
58-60-35(a)(2), when offered or sold by a
preneed sales licensee licensed under Article
13D of Chapter 90 of the General Statutes;
(5) Travel, accident and baggage; or
(6) Vehicle service agreements and mechanical
breakdown insurance.
(c) Responsibility of insurance companies for forms:
(1) Companies shall have on file with the Division
the address of one central licensing office and
the individual within such office to which all
correspondence, licenses, and invoices will be
forwarded.
(2) Companies shall have on file with the Division
the name of the individual responsible for all
agent appointments and termination of agent
appointments submitted by the company to the
Division.
(3) A company shall verify the licensure of an
agent before the company appoints the agent.
(4) Companies shall notify the Division within 10
days after any change of address of the central
licensing office and of any change of the
individual within such office to which all
correspondence, licenses, and invoices will be
forwarded.
(d) Responsibility of the agent, limited representative and
adjuster:
(1) An applicant who must take the examination
shall comply with Section .0300 of this
Subchapter.
(2) A person, after surrender or termination of a
license for such period of time that he is no
longer eligible for waiver of the examination,
shall meet all legal requirements for previously
unlicensed persons.
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(3) Every licensee shall, upon demand from the
Division, furnish in writing any information
relating to the licensee's insurance business
within 10 business days after the demand.
(e) An applicant for a resident license shall, if applicable, obtain
an original letter of clearance from his former state of residency
certifying the kinds of insurance for which the applicant was
licensed, that all licenses held in that state have been canceled
and that the applicant was in good standing in that state at the
time of the cancellation of licenses. A letter of clearance is valid
for 90 days from date of issuance.
(f) A person who applies for a license before January 1, 2008,
shall receive the license in accordance with G.S. 58-33-26(c1)
without paying an additional registration fee if the license is
issued on or after January 1, 2008.
(g) Only individuals may apply for limited representative and
adjuster licenses.
History Note: Authority G.S. 58-2-40; 58-2-195(a); 58-33-
26; 58-33-30; 58-33-66;
Eff. February 1, 1976;
Readopted Eff. June 12, 1978;
Amended Eff. February 1, 2008; April 1, 2003; February 1,
1996; October 1, 1990; February 1, 1989.
11 NCAC 06A .0404 LICENSING OF BROKER
(a) An applicant shall be a licensed agent in North Carolina for
each kind of insurance to be brokered.
(b) A broker's license gives the holder authority to broker only
those kinds of insurance for which he holds an agent's license.
Brokering shall be done through a licensed and appointed agent
of the company with which the business is being placed. A
broker's license does not confer binding authority; it only gives
authority to share in commissions with a writing agent.
(c) Each applicant shall file with his application a surety bond
or cash, certificates of deposit, or securities as provided by
statute. Any cash, certificate of deposit, or securities deposited
in lieu of the surety bond shall be held in accordance with 11
NCAC 11B .0100.
History Note: Authority G.S. 58-2-40; 58-33-30(f),(h)(1);
Eff. February 1, 1976;
Readopted Eff. June 12, 1978;
Amended Eff. October 1, 1990; February 1, 1989; July 1, 1986;
Temporary Amendment Eff. October 3, 1991 For a Period of
180 Days to Expire on March 30, 1992;
Amended Eff. February 1, 2008; March 1, 1992.
11 NCAC 06A .0405 LICENSING OF NONRESIDENT
BROKER
History Note: Filed as a Temporary Amendment Eff. October
3, 1991 For a Period of 180 Days to Expire
on March 30, 1992;
Authority G.S. 58-2-40; 58-33-30(f),(h)(2); 58-33-125(a);
Eff. February 1, 1976;
Readopted Eff. June 12, 1978;
Amended Eff. March 1, 1992; October 1, 1990; February 1,
1989;
Repealed Eff. February 1, 2008.
11 NCAC 06A .0408 LICENSING OF MOTOR
VEHICLE DAMAGE APPRAISER
History Note: Authority G.S. 58-2-40; 58-33-10(14);
58-33-30;
Eff. February 1, 1976;
Readopted Eff. June 12, 1978;
Amended Eff. October 1, 1990; February 1, 1989; July 1, 1986;
Repealed Eff. February 1, 2008.
11 NCAC 06A .0414 ADJUSTER'S LEARNER'S
PERMIT
History Note: Authority G.S. 58-2-40; 58-33-70;
Eff. October 1, 1990;
Amended Eff. April 1, 2003;
Repealed Eff. February 1, 2008.
11 NCAC 06A .0604 PERSONAL INTERVIEWS
History Note: Authority G.S. 58-33-45;
Eff. February 1, 1976;
Readopted Eff. June 12, 1978;
Amended Eff. February 1, 1989;
Repealed Eff. February 1, 2008.
11 NCAC 06A .0701 GENERAL REQUIREMENTS
(a) This Section applies to individuals attempting to obtain a
resident license to solicit property, casualty, personal lines, life,
accident and health, or sickness insurance in North Carolina
except as specifically exempted by Paragraphs (b) and (c) of this
Rule.
(b) Individuals who are exempt from the requirement for a
written examination pursuant to G.S. 58-33-35 are exempt from
prelicensing education requirements.
(c) Individuals holding one or more of the following insurance
designations are exempt from prelicensing education
requirements:
(1) Accident and health or sickness:
(A) Registered Health Underwriter
(RHU);
(B) Certified Employee Benefits
Specialist (CEBS);
(C) Registered Employee Benefits
Consultant (REBC); and
(D) Health Insurance Associate (HIA).
(2) Life:
(A) Certified Insurance Counselor (CIC);
(B) Certified Employee Benefits
Specialist (CEBS); and
(C) Certified Financial Planner (CFP).
(3) Property:
(A) Accredited Advisor in Insurance
(AAI);
(B) Associate in Risk Management
(ARM); and
(C) Certified Insurance Counselor (CIC).
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(4) Casualty:
(A) Accredited Advisor in Insurance
(AAI);
(B) Associate in Risk Management
(ARM); and
(C) Certified Insurance Counselor (CIC).
(5) Personal lines:
(A) Accredited Advisor in Insurance
(AAI);
(B) Associate in Risk Management
(ARM); and
(C) Certified Insurance Counselor (CIC).
(6) Property, casualty, personal lines, life,
accident and health or sickness:
(A) Holder of degree in